TDI Metro Ltd v Fingal County Council

• Jurisdiction: Ireland
• Judge: Hardiman J,Justice Denham
• Judgment Date: 31 March 2000
• Neutral Citation: [2000] IESC 53
• Court: Supreme Court
• Docket Number: [S.C. No. 208 of 1999]
• Date: 31 March 2000

TDI METRO LTD & HALLIGAN v. DELAP

JUDICIAL REVIEW

BETWEEN

T.D.I METRO LIMITED AND PATRICKHALLIGAN

APPLICANTS

AND

DISTRICT JUDGE SEAN DELAP

RESPONDENT

AND

FINGAL COURTY COUNCIL

NOTICE PARTY

[2000] IESC 53

Denham, J.

Murphy, J.

Barron, J.

Murroy, J.

Hardiman, J.

208/99

THE SUPREME COURT

Abstract:

Planning and development - Criminal law - Practice and procedure - Local Government - Administrative law - Constitutional law - Separation of powers - Environment - Judicial review - Certiorari - Role of Attorney General - District Court prosecution - Applicants elected to be tried summarily - Whether planning authority entitled to prosecute offences on indictment - Whether Attorney General entitled to intervene in proceedings - Whether sufficient public interest to justify joining Attorney General as party to proceedings - Local Government (Planning and Development) Act, 1963 (No 28) sections 24, 80 - Local Government (Planning and Development) Act 1982 (No 21) - Prosecution of Offences Act, 1974 (No 22) - Solicitors Act, 1954 (No 36) - Family Law Act, 1995 (No 26) section 29 - Rules of the Superior Courts, 1986 (SI 15) Order 15, rule 13; Order 60, rules 1, 2; Order 84, rule 22(6), 26 - Criminal Justice (Administration) Act, 1924 (No 44) section 9 - Bunreacht na hÉireann, 1937 Articles 29.4.1º, 30.4., 34.

Fingal County Council ("the local authority") had initiated a prosecution of the applicants in respect of a planning matter. The prosecution had been successful. However upon judicial review proceedings being brought an order of certiorari was granted in respect of the prosecution order on the grounds that the local authority had not the power to prosecute indictable offences. The matter was appealed. This application concerned an application by the Attorney General to intervene in the proceedings. On behalf of the Attorney General it was contended that he was a constitutional officer who was entitled to be joined to the proceedings which concerned a matter of public importance. Held by Denham J that there was sufficient public interest in the issues being appealed to warrant making the order joining the Attorney General as a party to proceedings. Hardiman J held that although the Attorney General did not have an automatic entitlement to be joined to the proceedings in this instance it was appropriate that the Attorney General be joined. The order joining the Attorney General may ultimately have a bearing on the issue of costs.

1 Hardiman Jdelivered the 31st day of March 2000.

BACKGROUND

2 On the 9th June 1999 the High Court granted Certiorari quashing the Order of the Respondent of the 26th February 1998. By this Order, the Respondent had convicted both Applicants of an offence under Section 24 of the Local Government (Planning andDevelopmen) Act 1963in respect of the unauthorised erection of an advertising hoarding. The Notice Party was the Prosecutor in the District Court proceedings.

3 The point take by the Applicants was that the offence of which they were convicted was an indictable offence so that the Notice Party had no power, inherent or conferred, to prosecute it and the Respondent had accordingly acted without or in excess of jurisdiction in convicting the Applicants. The Notice Party relied on the fact that the offence, though indictable, was also triable summarily in certain circumstances. Therefore, the Notice Party claimed, it had power to commence the prosecution and to continue it in the event that it was being disposed of summarily.

4 The High Court in reaching a decision in favour of the Applicant construec a number of statutory provisions and placed emphasis on the judgment of this Court in Cumann luthchleas Gael v Windle (1994) 1 IR 525.

5 The notice Party appealed to this Court from the judgment and Order of the High Court by notice of appeal dated the 7th September 1999.

THE PRESENT ISSUE

6 There is now before the Court the Attorney General's Notice of Motion dated the 21st February 2000 seeking an Order granting him liberty to intervene in the appeal, and certain ancillary Orders. This motion is supported by an affidavit of Ann Spain. She avers that the judgment of the High Court has implications for the prosecution of offences under a range of legislation. She says that certain cases have been dismissed by the District Court on the basis of the High Court judgment in this case. Accordingly she contends that the issues raised inthe Appeal are issues of general public concern and touch on such important and sensitive areas as waste management and environmental control and protection.

7 In addition to the pleadings, both sides have filed very useful written submissions. The Attorney General claims that the case affects the general public interest in the prosecution of offences, and the general public interest in the protection of the environment. he says that much legislation in this area has provided for summary prosecution by relevant statutory authorities. It is contended that the Attorney General is an appropriate person to be heard "having regard to his role in representing the public interest before the Courts, and the general importance, significance and impact of theseproceedings."

8 In reply, the Applicant points out that no relief of any sort is claimed as against the Attorney General, and that he is not a party directly affected by the proceedings. They also point out that at no stage of the judicial review proceedings did the High Court think it fit to regard the Attorney General as a "person who ought, whether under this rule or otherwise, to have been served." (Order 84 Rule(6)). Equally the Attorney General did not himself seek to be joined in the High Court as he might have done under Order 84 rule 26(1). It is said that this omission was all the more significant because it is not averred that the Attorney was unaware of the proceedings.

9 The Applicants also contend that the case is not identical to or analogous with any or the reported cases where the Attorney General has been joined since he is not asserting any right of the public as a whole and neither he nor any party with whom he is identified is liable to be financially affected by the result of the case.

10 In general, there is agreement between the parties as to the relevant provisions of the rules and the authorities having a bearing on the case. Each side has put its case in a very forthright manner. Mr Feichin McDonagh S.c. for the Attomey General has specificallystated that if heard the Attorney would not propose to urge any point outside the existing statement of opposition, although be may rely on further authorities. He also made it clear that the Attorney agreed that, if he were heard, the Court would have full discertain to reflect the basis of his attendance in its Order as to costs regardless of the outcome.

11 Mr James O'Reilly S.C. for the Notice Party supported the position of the Attorney General.

THE RULES OF COURT

12 We have been referred by the parties to certain Rules of Court, Order 15 Rule 13 provides a general power for the Court of its won motion or otherwise to add as a party any party "who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions invloved in the couse ormatter".

13 There is a broader provision or Order 84, relating to judicial review proceedings. At Rule 22 (6) it is provided that the Court shall have power to direct the service of the proceedings on any person ought to have been serve. At Rule 26(1) the Court is empowered to hear "any person who desires to be heard in opposition to the motion or summons and appeas to the Court to be a proper person to beheard"

14 No direction was made under either of those rules, nor was any such direction sought, in the High Court. It may be that the present application might be treated as one under Order 84 Rule26(1). If so it will be for the Attorney General to satisfy the Court that he is a proper person to be heard and that he should be heard at this stage not having sought to be heard in the High Court.

15 It does not appear to me that Order 60, relating to the giving of notice to the Attorney General, where questions as to the interpretation of the Constitution arise, has any relevance to this applications. This rules was not relied upon in argument by Mr McDonagh.

THE POSITION OF THE ATTORNEY GENERAL AND THE PUBLIC INTEREST

16 The substantive point argued on behalf of the Attomey General was advanced under this heading and was expressed as follows in the Attorney's written submissions:

"It is submitted that the Attorney General has a general role entitling him to intervene in circumstances where issues of general public concern arise and where it is appropriate for the Court to consider the view of the exective." (emphasis added)

17 It is clear from this formulation of the case that it is as representative of the executive on what is said to be a point of general public oncern, and not in any other more independent capacity, that the Attorney wishes to intervene, and that he claims to be entitled to do so ex officio

18 On this aspect, reliance was placed on a citation from Professor James Casey's ditinguished work "The Irish Law Officers"(1996). At page 148 the learned author said:

"The Attorney General?'s role as intervener in civil proceedings is not confined to the situations covered by Order 60. There is authority for the proposition that he may intervene whaenever some aspect of the public interest comes into play. Though it has not been of significance in modern Irish practice, this facet of the Attorney's functions is confirmed in - and well illustrated by - by English case of Adams v Adams (Attorney General interventing) 1971 p188."

19 The only authority cited for the...