Tracey v The Minister for Justice and Equality and Law Reform

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Robert Eagar
Judgment Date25 October 2019
Neutral Citation[2019] IEHC 950
Docket Number[2007 No. 7939 P] [2008 No.1840 P] [2008 No. 11092 P] [2008 No. 11094 P]
Date25 October 2019

[2019] IEHC 950

THE HIGH COURT

Robert Eagar

[2007 No. 7939 P]

[2007 No. 8488 P]

[2008 No.1840 P]

[2008 No. 11092 P]

[2008 No. 11094 P]

BETWEEN
KEVIN TRACEY
PLAINTIFFS
V.
THE MINISTER FOR JUSTICE AND EQUALITY AND LAW REFORM, IRELAND, THE ATTORNEY GENERAL, THE COMMISSIONER OF AN GARDA SIOCHANA, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE DUBLIN METROPOLITAN DISTRICT COURT, THE COURTS SERVICE

AND

KEITH BANNON
DEFENDANTS
BETWEEN
KEVIN TRACEY
PLAINTIFF
V.
THE MINISTER FOR JUSTICE AND EQUALITY AND LAW REFORM, IRELAND, THE ATTORNEY GENERAL, THE COMMISSIONER OF AN GARDA SIOCHANA, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE DUBLIN METROPOLITAN DISTRICT COURT, THE COURTS SERVICE

AND

DAVID REYNOLDS
DEFENDANTS
KEVIN TRACEY

AND

KAREN TRACEY
PLAINTIFFS
V.
IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE AND EQUALITY AND LAW REFORM, THE COMMISSIONER OF AN GARDA SIOCHANA, THE GARDA COMPLAINTS BOARD, ANTHONY DUGGAN, MALACHY DUGGAN, MARTIN GRIFFIN, LIAM MULGREW, DECLAN MURRAY, EDWARD FINUCANE, DEIRDRE RYAN, FELIM MCKENNA, PAUL FANNING, KEVIN GROGAN, THE DIRECTOR OF PUBLIC PROSECUTIONS, CLAIRE LOFTUS, RONAN O'NEILL, DECLAN KEATING, THE COURTS SERVICE, FRIEDA MCELHINNEY, CORMAC DUNNE, YVONNE BAMBURY, MARY MCKEOWN, OLIVER DOYLE

AND

BRIDGET O'DOWDA
DEFENDANTS
KEVIN TRACEY

AND

KAREN TRACEY
PLAINTIFFS
V.
IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE AND EQUALITY AND LAW REFORM, THE COMMISSIONER OF AN GARDA SIOCHANA, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE DUBLIN METROPOLITAN DISTRICT COURT, THE COURTS SERVICE, EDWARD FINUCANE, KEVIN GROGAN, DAVID REYNOLDS, PADRAIG O'MEARA, RONAN COFFEY, JASON COURAGE

AND

MICHAEL FITZPATRICK
DEFENDANTS
KEVIN TRACEY

AND

KAREN TRACEY
PLAINTIFFS
V.
IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE AND EQUALITY AND LAW REFORM, THE COMMISSIONER OF AN GARDA SIOCHANA, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COURTS SERVICE, JOHN MOLLOY, FRIEDA MCELHINNEY, HAZEL BELL, KEITH LAMBE, EDWARD FINUCANE, KEVIN GROGAN, DAVID REYNOLDS, DEIRDRE RYAN

AND

RONAN COFFEY
DEFENDANTS

Case management – Recusal – Stay – Plaintiff seeking the recusal of the judge from the case management of the proceedings – Whether the judge should recuse himself of the case management of the cases

Facts: The plaintiff, Mr Tracey, applied by way of notice of motion dated the 28th November 2019 seeking the recusal of the judge from the case management of these proceedings, in full compliance with the criteria of natural justice (nemo judex in causa sua) as endorsed by the former Chief Justice in Dellway Investments v NAMA (2011) IESC 14. The plaintiff also sought an order to stay all further case management in these cases until after the hearing of this motion. He also sought further and other relief and costs. The notice of motion was grounded on a grounding affidavit sworn by the plaintiff. Although the application was that of the plaintiff, he did not take part in the proceedings on the basis that he felt that another judge should consider whether or not the judge should recuse himself from the case management of these cases.

Held by the High Court that the position of the plaintiff was clearly wrong as it was a matter in the first instance for the judge who was dealing with the issues to decide whether or not he should recuse himself from the case. The court was satisfied that the plaintiffs in this case were guilty of forum shopping, particularly in the circumstance where Mr Tracey had not sought to appeal any of the decisions of the court.

The Court held that the judge was satisfied that he should not recuse himself of the case management of these cases. The Court held that unless it received direction from the Court of Appeal or the Supreme Court, it should continue to case manage these proceedings.

Motion refused.

JUDGMENT of Mr. Justice Robert Eagar delivered on the 25th day of October, 2019
1

This is the court's judgment on an application by way of notice of motion dated the 28th November 2019 by the plaintiff seeking the recusal of this judge from the case management of these proceedings, in full compliance with the criteria of natural justice (nemo judex in causa sua - no judge shall be a judge in his own cause) as endorsed by the former Chief Justice, Ms. Susan Denham, in Dellway Investments v. NAMA (2011) IESC 14. The plaintiff also sought an order to stay all further case management in these cases until after the hearing of this motion. He also sought further and other relief and costs.

2

The notice of motion was grounded on a grounding affidavit sworn by the plaintiff.

3

Although the application was that of the plaintiff, he did not take part in the proceedings on the basis that he felt that another judge should consider whether or not this judge should recuse himself from the case management of these cases.

4

The position of the plaintiff is clearly wrong as it is a matter in the first instance for the judge who is dealing with the issues to decide whether or not he should recuse himself from the case.

History of the proceedings
5

The first of the proceedings was commenced by the issuing of a plenary summons by the plaintiffs on the 20th December 2006. The proceedings were not served until the following year. There are two sets of defendants to the principal proceedings, the Courts Service, who are represented by A&L Goodbody Solicitors for most of the cases, and the relevant State respondents who are represented by the Chief State Solicitors Office.

6

The principal proceedings progressed in an orderly fashion with the delivery of a statement of claim on the 31st May 2007, the raising of particulars and replies thereto, and the filing of defences, such that a notice of trial was filed by the plaintiffs on the 27th of August 2008. It is clear that the plaintiffs had progressed the case with reasonable expedition up to that point.

7

There were further procedural issues arising from discovery which resulted in voluntary discovery being part agreed on behalf of the State representatives by letter dated the 21st September 2009. The response of the State respondents of that date related to a request seeking voluntary discovery which had been made by the plaintiffs on the 6th January 2009. This was in relation to a case which has been disposed of bearing record number (2006/6470 P). By early 2010 there were a total of seven sets of proceedings in being in which Mr. Tracey either alone or in one guise or another was the principal moving party and elements of the State were the sole, or in some cases, the main defendants. In early 2010 the State respondents brought a motion seeking case management of all of those cases together. The principal proceedings was one of the cases brought under case management on that basis. One of the cases in question was struck out by order of Charleton J. on the 29th June 2010. The remainder of the cases continued to be the subject matter of case management to the adjournment from time to time of the case management applications.

8

The principal nature of the proceedings are that the plaintiffs were subject to a particular conspiracy and collusion of malicious prosecution and abuse of legal process including false summonses, false prosecutors, false fines, false indorsement of licence, forced breaking and entering and assaults by members of An Garda Síochána in executing false warrants of arrests for false imprisonment and the plaintiff's constitutionally inviolable home and incarceration at Mountjoy Prison.

9

The application for case management was initially returnable for the 15th March 2010 before Kearns P. It was subsequently adjourned from time to time to the 26th July, the 5th October, the 14th December 2010, and finally to the 4th March 2011.

10

In February 2011, a motion to strike out these proceedings for want of prosecution was brought on behalf of the Courts Service. The State respondents and other relevant State parties also sought to have each of the relevant proceedings struck out for want of prosecution. These applications were initially returnable on the 18th February 2011 and were adjourned to the case management date that then stood adjourned to the 4th March 2011 so they could be heard in conjunction with case management.

11

What transpired was then contained in a judgment of Kearns P. which he delivered on the 4th March 2011 in the following terms: -

“At the start of the Michaelmas term in 2010 it was intimated to me by a person attending court on Mr. Tracey's behalf that he was ill and had been hospitalised first in Connolly Hospital, first in Connolly Hospital and after in Beaumont Hospital up to the time of his discharge on the 20th August 2010. The only evidence adduced to support ongoing requests for an adjournment was a four line medical report from a general practitioner dated the 2nd September 2010. At that time, I put Mr. Tracey's litigation back for a period of time to enable him to obtain a specialist opinion and in doing so made it absolutely clear to his representative in court that, having regard to the long interval of time since the matters complained of occurred, the Court would require such detailed expert evidence, failing which the proceedings which were to be before the court in early November would be dismissed. I impressed this fact upon Mr. Tracey's representatives in the strongest possible terms”.

12

Kearns P. also stated: -

“In the instant case Mr. Tracey was represented by a different McKenzie friend when the matter came before me on the 4th March. On that date various defendants had sought to dismiss the plaintiff's claim for want of prosecution”.

On the 4th March, Mr. Tracey's representative, Mr. Justin Morahan, produced letters which in the opinion of Kearns P. failed to explain why the plaintiff was unable to attend upon his legal business or even to swear an affidavit in response to those replied upon by the various defendants. Kearns P. then made...

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2 cases
  • S v Zuma and another
    • South Africa
    • 30 January 2023
    ...Director of Public Prosecutions [2018] IEHC 576 paras 54 – 55, Tracey v The Minister for Justice and Equality and Law Reform & others [2019] IEHC 950 paras 58 – 68, Harrison v Charleton [2020] IECA 168 paras 62 – 72, Connor v Director of Public Prosecutions [2022] IEHC 176 paras 6–15, and H......
  • Tracey v Minister for Justice & Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 21 December 2020
    ...affidavit. 23 Eagar J. delivered a comprehensive judgment on 25 October 2019, Tracey v. Minister for Justice, Equality and Law Reform [2019] IEHC 950. He dismissed the application to recuse himself and ordered that the application stand further adjourned in relation to the question of costs......

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