S.M. v Ireland (No.1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 28 March 2007
• Neutral Citation: [2007] IESC 11
• Court: Supreme Court
• Docket Number: [S.C.
• Date: 28 March 2007

MITCHELL v IRELAND & ORS

Between

stephen mitchell

Plaintiff/appellant

and

ireland, the atTorney general and the director of public prosecutions

defendants/respondents

[2007] IESC 11

Murray C.J.

Fennelly J.

Kearns J.

[157/2005]

The Supreme Court

Abstract:

Practice and procedure - Abuse of process - Rule in Henderson v Henderson - Delay - Whether proceedings raised issue which could sensibly have been raised in earlier proceedings.

This was an appeal against the order of the High Court (Hanna J.) dismissing the Plaintiff's claim as an abuse of process on the grounds that it raised issues which could properly and sensibly have been raised in earlier proceedings.

Held by the Supreme Court (Murray CJ, Fennelly and Kearns JJ) in allowing the appeal that the proceedings raised a discrete constitutional point which could not sensibly have been raised in earlier proceedings. There had been delay in bringing the motion to dismiss.

Reporter: R.W.

OFFENCES AGAINST THE PERSON ACT 1861 S62

HENDERSON v HENDERSON 1843 3 HARE 100]

CARROLL v RYAN & ROGERS & LAW SOCIETY OF IRELAND 2003 1 IR 309 2003 2 ILRM 1 2003 8 1753

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372 2003 1 49

CONSTITUTION ART 40.1

CRIMINAL LAW (AMDT) ACT 1935 S6

RSC O.19 r28

BARRY v BUCKLEY 1981 IR 306

JOHNSON v GORE WOOD & CO 2002 2 AC 1

RIORDAN v AN TAOISEACH & ORS 1999 4 IR 343 1998 37 13940

WOODHOUSE v CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

RUSSELL v WATERFORD & LIMERICK RAILWAY CO 1885 16 LR IR 314

COX v DUBLIN CITY DISTILLERY (NO. 2) 1915 1 IR 345

CARROLL v RYAN & ROGERS & LAW SOCIETY OF IRELAND 2003 1 IR 309 2003 2 ILRM 1 2003 8 1753

AKRAM v MIN FOR JUSTICE & ORS 2004 1 IR 452 2004 1 211

LANDERS v DPP 2004 2 IR 363 2004 27 6259

1 JUDGMENT of Mr. Justice Kearns delivered the 28th day of March, 2007

2 This is an appeal from the order and judgment of the High Court (Hanna J.) delivered on 18th March, 2005, whereby it was ordered that the plaintiff's claim herein should stand dismissed on the grounds that the same was an abuse of process. A motion seeking such relief was brought on behalf of the defendants on 8th February, 2005, just one week prior to the scheduled hearing of the proceedings which had been initiated by the plaintiff on 30th May, 2003. In those proceedings the plaintiff had claimed, inter alia, a declaration that s. 62 of the Offences against the Person Act 1861 was unconstitutional and therefore null and void. If the plaintiff was successful in those plenary proceedings, some 31 offences contrary to s. 62 of the Offences Against the Person Act 1861 alleging sexual abuse of various complainants by the plaintiff between 1963 - 1976 could not have proceeded further.

Background

3 The plaintiff at all material times was a Christian Brother and teacher at St. Joseph's Residential School at Salthill in Galway between August, 1967 and August, 1974. Between March, 1995 and January, 1996, six former pupils of the school made complaints to An Garda Síochána alleging that they had been sexually abused by the plaintiff during periods between 1963 and 1976. A garda investigation commenced and statements were taken from the six complainants. The plaintiff was interviewed on two occasions in 1996 and denied the allegations. A warrant for his arrest was issued on 16th July, 1997 and executed on 8th September, 1997. On 1st October, 1997, the plaintiff was charged with 25 offences of indecent assault under s. 62 of the Offences against the Person Act 1861. Thereafter he was remanded on bail and has remained on bail ever since.

4 A book of evidence was served in November, 1997. In February, 1999 the plaintiff was charged with eight further offences concerning different complainants, though the charges related to more or less the same period. Those latter complainants had made their allegations in June and July 1997. A second book of evidence in respect of those charges was served on 3rd February, 1999. All of the charges, 33 in total, including 31 involving offences under s. 62 of the Act of 1861, were consolidated and became the subject of one return for trial dated 28th February, 2000.

5 However, prior to the consolidation and the return for trial, the plaintiff obtained leave to apply for judicial review against the Director of Public Prosecutions on 16th February, 1998. This application sought to restrain any trial on the grounds of delay. That application, which related only to the first tranche of charges, was heard by McGuinness J., who refused the application on 20th December, 1999.

6 There then followed various requests for disclosure, applications for third party discovery and applications to transfer the case from Galway to Dublin.

7 On 30th May, 2003, the plaintiff instituted, by way of plenary summons, the proceedings herein. In these proceedings he seeks, by way of declaratory relief, a declaration that the provisions of s. 62 of the Act of 1861 are inconsistent with the Constitution. He further seeks consequential relief by way of injunction restraining the prosecution of the offences of indecent assault that have been laid against him under that section.

8 A statement of claim was delivered on 4th September, 2003. A defence thereto was delivered on 26th November, 2003. On or about 11th December, 2003, the plaintiff changed his solicitors and a notice of change of solicitors was served. Following the introduction of the European Convention on Human Rights Act 2003, an amended statement of claim was delivered on 19th November, 2004 and an amended defence thereto was delivered on the same date.

9 That defence - in both its original and amended form - failed to raise any point or objection to the effect that the proceedings constituted an abuse of process.

10 The matter was listed before Finnegan P. on 15th November, 2004 at which point counsel for the defendants indicated to the learned President that the case was ready for hearing and that there were no outstanding issues. No mention or reference was made to any objection to the proceedings on grounds of abuse of process. The learned President fixed 15th February, 2005 as the date for the hearing of the plenary proceedings. However, on 8th February, 2005, the defendants brought the motion, the subject matter of this appeal, seeking to dismiss the plenary proceedings on the basis that the same were an abuse of process. The return date for the hearing of the motion was the same date as that fixed for the full hearing but the trial judge elected to deal with the motion as a preliminary issue and, following a two day hearing, gave a reserved judgment on the issue on 18th March, 2005.

The Judgment

11 In the course of the judgment, the learned trial judge rejected a contention raised by the plaintiff to the effect that the defendants were estopped from raising the issue of abuse of process by reason of their own delay. He then proceeded to deal with the question whether it would have been possible to litigate the constitutional issue raised in the proceedings within the framework of the judicial review proceedings which had been heard and determined by McGuinness J. in the High Court in 1999. While the learned High Court judge acknowledged that a "stand alone" challenge to the constitutionality of any statute should be brought by way of plenary action, he noted that the reason why the issue raised in the present proceedings was not ventilated in the earlier judicial review proceedings was for the simple reason that the point had not occurred to the plaintiff's then lawyers. He took the view that as the issue of constitutionality would clearly have been regarded as one of two attacks upon the prosecution of the criminal charges, it was an issue which could properly have been accommodated within the framework of the Judicial Review proceedings.

12 Dealing with the question of abuse of process itself, he considered the origin of the rule in Henderson v. Henderson (1843) 3 Hare 100 as approved in this jurisdiction in Carroll & Anor v. Ryan & ors, Carroll v. The Law Society of Ireland [2003] 1 I.R. 309 wherein Hardiman J., at p.317 referred to the rule in the following terms:-

"There is a well established rule of law whereby a litigant may not make the same contention, in legal proceedings which might have been but was not brought forward in previous litigation."

13 The learned trial High Court judge referred to a number of other decisions which had affirmed the existence of the rule and discussed its application, referring in particular to the decision of this Court in A. A. v. The Medical Council and the Attorney General [2003] 4 I.R. 302. He concluded that, in the circumstances of the instant case, the plaintiff was estopped by omission from proceeding with his constitutional claim, holding that:-

"This is clearly an issue which could reasonably have been brought forward before. It is in the interests of the plaintiff, the complainants and, the defendants and the public generally that the criminal charges be processed with the minimum of delay having regard to the fact that the charges relate to a period of time so long ago. As it is, more than six years have elapsed since the commencement of the judicial review proceedings. At all material times, the plaintiff has been legally represented and has had the benefit of what was and is, no doubt, the highest standard of legal advice. Nothing new has emerged nor has there been any alteration in the plaintiff's circumstances ...The only new factor to emerge is that a fresh legal point has occurred to the plaintiff's present legal representatives. In my view, that point could properly and sensibly have been raised in the earlier proceedings."

14 Finally, the learned trial judge considered the...