High Court of Ireland Decisions

1. The facts surrounding this application are not in dispute, but in order to understand the case being made by the Applicant, it is necessary to summarise these facts, both in relation to the Applicant himself and in relation to the purported appointment of the Notice Party as a District Court Clerk.

2. It is alleged that the Applicant committed certain offences under the Road Traffic Acts on 18th June, 1996 at Ardoughan, Ballina, County Mayo. On 29th November, 1996, a summons was issued from the District Court Office in Ballina reciting that an application was made to that office on 29th November, 1996 on behalf of the second Respondent, and the Applicant was summoned to appear at a sitting of the District Court in Ballina on 10th December, 1996. This summons was signed by the Notice Party who was stated therein to be the "appropriate District Court Clerk".

3. On 10th December, 1996, the Applicant appeared by his solicitor before the Ballina District Court, and his solicitor has deposed on Affidavit that it was at all times his intention on behalf of the Applicant to challenge the validity of this summons. In fact, the validity of another summons signed by the Third Party was challenged in an earlier case on the same day by another solicitor, and the first Respondent adjourned all summonses signed by the Notice Party until 14th January, 1997, including the summons issued to the Applicant.

4. It would appear that the District Court Office in Ballina recognised that the Notice Party had not in fact been appointed as a District Court Clerk at the time she signed the summons, and accordingly a new summons was issued on 16th December, 1996, again signed by the Notice Party as the "appropriate District Court Clerk" and purporting to be on foot of a complaint made on behalf of the second Respondent on 16th December, 1996 to the District Court Office in Ballina. This second summons was returnable for 14th January, 1997, which was also the date to which the first summons had been adjourned. On 14th January, 1997, the Applicant again appeared in Ballina District Court by his solicitor, who challenged the validity of both summonses on the basis that the Notice Party had not been validly appointed as a District Court Clerk, and therefore could not lawfully issue summonses. The first Respondent struck out the summons of 29th November, 1996 and indicated that he felt the issue of the validity of the second summons should more properly be determined by the High Court, and adjourned the matter to allow these proceedings to be brought. The second summons still stands adjourned pending the outcome of these proceedings.

5. The Notice Party was formerly an Executive Officer in the Department of the Environment. Some time prior to October 1996, she requested a transfer to Mayo. On 4th October, 1996, she was transferred to the Ballina District Court Office on a temporary basis, but no appointment was made or purported to be made of her as a District Court Clerk. She did in fact act as a District Court Clerk from 10th October, 1996. Although it is not the issue in this case, it seems quite clear that the Notice Party was not in fact a District Court Clerk at the time of the issue of the first summons, and this seems to have been recognised by the fact that the second summons was only issued after attempts had been made to regularise her position.

6. On 5th December, 1996, two documents issued from the Department of Justice purporting to regularise the Notice Party's position. The first read:-

7. This was signed by Margaret Kerrigan who was stated to be " an officer authorised in this behalf by the said Minister ".

8. The second document read:-

9. This was signed by Noel Synnott, who is stated to be " an officer authorised in this behalf by the said Minister ".

10. It is accepted that the Ms. Anne Giblin referred to in these two documents is in fact the Notice Party, who prefers to be known by her maiden name of "Anne Cawley", and no point arises on this.

11. It was in reliance on this appointment that the second summons was issued on 16th December, 1996, and was signed by the Notice Party as the appropriate District Court Clerk.

12. The office of District Court Clerk was established under the Court Officers Act, 1926. The relevant sections are as follows:-

13. The Respondents contend that the purported appointment of the Notice Party as a District Court Clerk is valid by reason of the authority of the third Respondent dated 11th July, 1996 whereby both Margaret Kerrigan and Noel Synnott were authorised to authenticate by their signatures orders and instruments made by the Minister for Justice pursuant to the provisions of subsection (4) of section 15 of the Ministers and Secretaries Act, 1924 and of subsection (2) of section 7 of the Documentary Evidence Act, 1925.

14. The procedure for issuing a District Court summons is set out in section 1 of the Courts (No. 3) Act, 1986, and the relevant subsections are as follows:-

15. The Applicant's case may be shortly stated. He contends that the Notice Party was never validly appointed as a District Court Clerk, and that therefore the second summons, which is now the only relevant summons as the first summons has been struck out is invalid because it has not been issued under the general superintendence of an appropriate District Court Clerk, nor does the name of the appropriate District Court Clerk appear on the summons as required by section 1(2) of the Courts (No. 3) Act, 1986. The basis of this submission is that section 46(2) of the Court Officers Act, 1926 requires the appointment of a District Court Clerk to be made personally by the Minister for Justice, and this is not a ministerial power which is open to delegation. The Applicant further contends that the provisions of section 15(4) of the Ministers and Secretaries Act, 1924 and section 7(2) of the Documentary Evidence Act, 1925, under which the Minister purported to give certain authority to Margaret Kerrigan and Noel Synnott, does not authorise them to make decisions on the part of the Minister, but merely to authenticate decisions which have been made by the Minister. By purporting to make the decision rather than to authenticate it, they are far exceeding their authority. They also say that a doctrine arising from the case of Carltona Limited -v- Commissioners of Works [1943] 2 All E.R. 560, which I will refer to in more detail in setting out the Respondents' arguments, do not apply to the present circumstances.

16. The Respondents basically rely upon what is known as the Carltona principle. The case of Carltona Limited -v- Commissioners of Works does contain a very useful statement of principle, although I think that this must be considered in the context of the facts of the case and of the wartime situation which prevailed in the United Kingdom at the time of the decision. The basic facts were that under certain defence regulations the Commissioners of Works were entitled to requisition premises because of a shortage of available factory and storage accommodation. The Commissioners of Works in fact never met as a body, but the Minister of Works and Planning was designated the first Commissioner. A decision was made to requisition premises which were the property of the applicant, and that decision was notified to the applicant by a letter signed by a Mr. Morse, and it was conceded that neither the Commissioners nor the Minister of Works and Planning ever personally brought their minds to bear on whether the requisition should be made. In rejecting the argument that the requisition was bad for this reason, Lord Greene M.R., in the Court of Appeal, said in an often quoted passage at page 563:-

17. This statement of principle is, of course, a statement based on common sense. It has been expressly approved of by the Supreme Court in Tang -v- Minister for Justice [1996] 2 I.L.R.M. 46, which applied the Carltona principle to the granting or refusing of permission to aliens to remain in the State. The Respondents argue that the appointment of a District Court Clerk is a matter in which the Minister may act through the relevant officials without any personal input.

18. They also rely on the unreported decision of Finlay P. in D.P.P. -v- O'Rourke given on 25th July, 1983. In that case, it was held that the assigning of a District Court Clerk to a specific District Court area was not a matter which required the personal decision of the Minister.

19. Finally, the Respondents point out that the administration of the District Court office in Ballina was under the supervision of Ms. Siobháin Terry, Chief Clerk, and that she exercised the general superintendence of that office. The validity of her appointment is not in issue in these proceedings, and must be assumed to be in order. Therefore, the Respondents argue that, even if the Notice Party was not properly appointed, the only defect in the summons is that the wrong name appeared as the appropriate District Court Clerk on the summons, and this is a purely procedural matter which can be cured by the issue of a new summons under the name of Ms. Terry. They also argue that the purpose of a summons is to summon a person to appear before the District Court and notify him that he will then be accused of an offence. The Applicant in this case did appear, and it is argued that this has cured any defect in the summons.

20. I do not consider that the Carltona principle applies to the present case. It is, of course, a principle that has very general application in administrative matters. As I have said, it is a very practical decision. However, it originated in rather peculiar wartime circumstances, and in a case where the relevant decision was one of thousands of similar decisions, which it would have been impractical for the Commissioners of Works or the Minister of Works and Planning to make personally. No authority was quoted to me, and I know of none, where this principle has been applied to an appointment to be made by a Minister to any particular office. I do not know how many District Court Clerks there are in the country, but it is clearly an important statutory position, which carries serious responsibilities in the administration of justice. I am also influenced by the fact that District Court Clerks are not only appointed by the Minister, but hold office at the will of and may be removed by the Minister. If the Respondents' argument is correct, the Notice Party could presumably be removed by the same persons who appointed her, again without any input from or knowledge of the Minister.

21. While I hold, therefore, that the Notice Party has not been properly appointed as a District Court Clerk, I agree with the Respondents that on the evidence the only defect in the summons is that the name of an appropriate District Court Clerk does not appear on the summons. This does not mean that the summons was not issued under the general superintendence of an appropriate District Court Clerk, and the appointment of the Chief Clerk in Ballina District Court Office has not been challenged in these proceedings. It may well be, therefore, and I am not making any ruling on the point, perfectly open to the District Court Office in Ballina to issue a new summons under the name of a properly appointed District Court Clerk attached to that office.

22. It was also suggested to me that the proceedings may be invalid, and irrevocably invalid, because of time limits, on the basis that the application for the issue of summons may not have been made to the appropriate office of the District Court as defined in the Courts (No. 3) Act, 1986, in that there may not have been a properly appointed District Court Clerk in the Ballina District Court Office. The only appointment which is challenged in these proceedings is the appointment of the Notice Party, and there is evidence that the office was under the superintendence of a Chief Clerk whose appointment has not been challenged. In any event, I would consider that this is not a matter for prohibition proceedings, as the validity of the complaint is a matter of defence which must be raised in the substantive prosecution. However, I would say that my decision in these proceedings should not be taken in any way to preclude the Applicant from raising a defence of this nature, should he be advised to do so.

23. The final point I would make is that the order of the Minister for Justice of 11th July, 1996 could not, in my view, in any way be interpreted as authorising the making of a decision which is required to be made by the Minister. It is merely an authority to authenticate by way of signature decisions which have already been made by the Minister, and in fact would seem to confirm that all that such persons were authorised to do was the administrative act of signing a document, but not the essential act of making the decision.

24. I propose to make an order of prohibition as sought in the first relief claimed, but I would emphasise that this relates only to hearing and determining the summons issued on 16th December, 1996, and does not necessarily preclude the issue of another summons. It seems to me that, subject to any argument which may be made, the second relief claimed is unnecessary. I will make a declaration that the Notice Party was not validly appointed by the third Respondent as a District Court Clerk, but as she was not validly appointed, it is of course not necessary to make an order of certiorari quashing the purported appointment. I will also make a declaration that this summons is invalid and of no effect.