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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Gallagher v. Casey & Ors [2005] IEHC 342 (24 August 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H342.html Cite as: [2005] IEHC 342, [2006] 1 ILRM 431 |
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Neutral Citation No: [2005] IEHC 342
2004 316 CA
THE HIGH COURT ON CIRCUIT
COUNTY DONEGAL
RECORD NO: 59/96
BETWEEN
PLAINTIFF
DEFENDANTS
INTERIM JUDGMENT of Mr. Justice Henry J. Abbott delivered on the 24th August, 2005.
This matter came on for appeal in the April Sessions of the High Court on Circuit County of Donegal. The order appealed was made in the Circuit Court on 24th April, 2002. This judgment deals with the appeal of Josephine Riney who now effectively represents the interests of Bridget Diamond and Josephine Riney. The order of the Circuit Court is a declaratory order as regards the claims of the Diamond and Riney defendants. This appeal had been in the Appeals List in Donegal on previous occasions and by notice of motion dated 14th October, 2002, the defendant appellant Josephine Riney issued a notice of motion seeking five reliefs in respect of preliminary objections which are set out in detail from (i) to (xxci). This notice of motion was grounded upon the affidavit of the said Josephine Riney sworn on 14th October, 2002. This is a long affidavit and refers to many exhibits therein. When the appeal came on for hearing on 14th October, 2002, the Court dismissed the said motion and reserved the costs thereof and adjourned the appeal from the order of the Circuit Court dated 24th April, 2002, to the next sitting of the High Court in Letterkenny. When the appeal was opened before me it was objected on behalf of the plaintiff that as Josephine Riney claimed to be the person having power of attorney of Bridget Diamond in respect of the premises to which the proceedings related that she did not have an interest in the premises and therefore had no standing as a defendant. I rejected this submission not so much by reason of the fact that the power of attorney had the effect of assigning any interest of Bridget Diamond to Josephine Riney, but by reason of the fact that Josephine Riney, being a personal litigant, should have an opportunity to state her case, and, if it transpired that Bridget Diamond had in fact had an interest in the property, then in the interest of fairness, Josephine Riney might be given a chance to perfect whatever transaction of assignment might have been agreed in substance with Bridget Diamond. The appellant Josephine Riney then raised a number of preliminary objections as follows:-
1. That the amended Civil Bill by which she was joined as a third defendant by order of the Circuit Court dated 3rd October, 2002 was not issued and she challenged counsel for the plaintiff to produce the original Civil Bill. During the course of the hearing it transpired that by what she meant as the original Civil Bill as the Civil Bill bearing the Circuit Court stamp, indicating that the Civil Bill was issued out of the Circuit Court, before service upon her.
2. That the plaintiff Cathal Gallagher being a beneficiary of the will of the deceased, and legal personal representative of the deceased, did not have title to initiate the proceedings as the plaintiff only vested the property in himself by assent made after initiation of the proceedings.
3. That there was non-compliance with the rules of the Circuit Court requiring proof that there was no person in possession of the premises who was not party to the proceedings.
I considered that in respect of the second two objections the order of the High Court made in respect of the notice of motion dated 14th October, 2002 dealt with the matter and that, accordingly it was res judicata. However in respect of the first objection, relating to the allegation of non issue of the amended Civil Bill to include Josephine Riney as a defendant, I am not absolutely sure that the notice of motion raised all the issues referred to by Josephine Riney in the hearing before me, and accordingly I ruled thereon de novo and now set out the reasons for same.
Josephine Riney was joined by order of the Circuit Court of 3rd day of October, 2000, and the operative part of the order reads as follows ….
"(2) That Josephine Riney be joined as an additional defendant in the proceedings
(3) That Josephine Riney the third named defendant do have 21 days from the date hereof for filing an appearance in delivery of defence".
The book of pleadings furnished for the appeal does not show that any defence was delivered by Josephine Riney but a defence and counter claim dated 13th April, 1999 was filed on behalf of Bridget Diamond through whom Josephine Riney "claims", and the court stamp indicates that it was filed on or around 13th April, 1999. The present Circuit Court Rules came into operation on 3rd December, 2001, and as the order joining Josephine Riney was made on 3rd October, 2000 the procedures by which the subsequent proceedings against Josephine Riney are to be judged depend on the requirements of the rules which pre-dated the "2001 Circuit Court Rules" the position as I understand it would be the same as that found by Morris J. in Brennan v. Judge Smith and Others ( Unreported, High Court, Morris J., 1st February, 1999) where he seems to accept the submissions of the applicant in that case as follows at p. 7 :-
"1. Order 10 of the Circuit Court 1950 as amended by S.I. 155 of 1990 and S.I. 216 of 1995 provides:
1. Every Civil Bill or other originating document shall before service be stamped and endorsed with the date and the amount paid therefore provided by law and unless so stamped and endorsed shall have no effect or force.
2. Save as otherwise provided in these rules every Civil Bill or other originating document shall be issued out of the office of the Court in a county having jurisdiction pursuant to these rules and such Bill or other originating document shall be dated with the date of issue, sealed and marked with the record number by the proper officer and shall thereupon be deemed to be issued … but no Civil Bill or other originating shall be deemed to have issued in accordance with these Rules unless dated, sealed, marked and issued by the proper officer as aforesaid".
In that case it was submitted that while Rule 1 was complied with and that the Civil Bill was stamped, it had not been issued sealed or marked with the record number by the proper officer. It was in these circumstances that it had not been issued in accordance with the rule and was therefore a nullity. Morris J. noted in his judgment that it was submitted on behalf of the applicant that while Order 59 Rule 13 of the then Circuit Court Rule provided that non compliance with any of these rules or with any practice for the time being in force in the court shall not render the proceedings void unless the court shall so direct such proceedings may be set aside wholly or in part as irregular or may be amended or otherwise dealt with in such manner or upon such terms as the court shall think fit, this saving rule is not applicable to the case under consideration because there was no "proceeding" within the correct meaning of the term, since the Civil Bill was bad from the outset, and that the rule only applied to circumstances where a valid proceeding exists commenced by a Civil Bill. He noted that it was further submitted that s. 15 of the Courts (Supplemental Provisions) Act 1961 defined "an action" as "a civil proceeding in the Circuit Court commenced by a Civil Bill" and since there was no valid Civil Bill in that matter there could have been no action. In the outcome of the Brennan v. Judge Smith and Others Morris J. decided in his discretion to refuse certiorari, but the thrust of the decision seems to be that he accepted that lack of compliance with the requirement in relation to issue and recording of the Civil Bill as such would amount to a nullity, which would have the effect of invalidating any subsequent court proceedings. While the present case and the proceedings involved in it are not all fours with the Brennan case I am prepared to accept that the Brennan case would indicate that generally that where a court adds a defendant to proceedings, and directs amendment of the Civil Bill accordingly, that the procedure for issue of Civil Bill under the present or pre-existing Circuit Court Rules as appropriate must be complied with, and that the order joining the defendant does not constitute the initiation of proceedings.
It was submitted on behalf of the plaintiff respondent in this case that the defect was one of procedural irregularity only, and that the court could rectify the situation by way of appropriate amendment if deemed necessary. By reason of the failure to produce a court stamped version of the copy of the Civil Bill naming Josephine Riney as a defendant, I am prepared to accept that there were defects in the issuing of the Civil Bill against Ms. Riney under existing 2001 or pre-existing Circuit Court Rules, as applicable.
The question arises whether the proceedings against Josephine Riney are a nullity as she suggested. I consider that notwithstanding any irregulatories that might vitiate the issue of a Civil Bill in ordinary circumstances the situation in this case is not one in which the proceedings against Ms. Riney are a nullity. This is because Josephine Riney applied in the first instance to the Circuit Court to be added as a party and she is estopped now from denying that she is a party. The purpose of the Circuit Court Rules and legislation associated therewith is to ensure the attendance and answer of a defendant who is not a co-operating party. Secondly, Josephine Riney has sought to obtain the benefit of, and has adopted the defence of Bridget Diamond which includes a counterclaim. She has therefore doubly sought involvement in the proceedings as a willingly participating party rather than the unwilling defendant presupposed by the scheme of all Circuit Court Rules either past or present.
In relation to the second and third objections regarding lack of proof that there is no person in possession of the property other than the parties joined and lack of standing, I consider that the case Bank of Ireland v. Smith [1993] 2 I.R. 102 is authority for the proposition that the equivalent provisions of Order 9 Rule 9 and Order 9 Rule 14 of the Rules of the Superior Courts 1986 were not such as to render invalid proceedings where there was non compliance with same, certainly as long as there was no prejudice. That was the position for many years before, and was noted in Furlong, the Law of Landlord and Tenant as administered in Ireland, (Dublin, 1869), even when the equivalent court rule had a statutory provenance.
As regards the objection regarding the assent made on 9th August, 2001, failing to procure the lack of title of the plaintiff to initiate the proceedings I consider that the judgment of Keane J. in the case In The Matter of the Vendor and Purchaser Act 1874 Colm Mohan plaintiff v. Thomas Roche as personal representative of Mary B. Roche Deceased Defendant 1991 1 I.R. 560 deals with the matter, where he held that upon construction of ss. 52 and 53 of the Succession Act 1965 where property had devolved and was vested in the personal representative, and was to be distributed to him or he became beneficially entitled to it, then an assent therefore was not required.
At the outset of the hearing I made rulings against Josephine Riney relating to the above matters and she reacted to same in two ways. The first reaction was to withdraw from the proceedings in her own right but drew the distinction between representing herself and speaking on behalf of Bridget Diamond, whose attorney she was, and continued to address the court. This distinction seems to have become blurred as the case continued before me, and I am not convinced that anything turns upon it anymore. The second reaction of Ms. Riney was to request that the court would thereupon state a case in relation to these matters in respect of which the Court had given interim rulings and required an interim judgment in writing setting out the reasons for same. She relied on the European Convention of Human Rights obliging courts to give reasons for their decisions as the basis for seeking a written statement of the reasons for my decision in that regard.
European Convention on Human Rights
Article 6 of the ECHR provides for fair procedures in the decision making process. Article 6 provides
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".
Article 6, paragraph 1 has been interpreted as obliging the courts to give reasons for their decisions. This has been described as justifying their activities as a state authority, demonstrating that the parties have been heard and affording the possibility of having the decision reviewed on appeal: see Suominen v. Finland 1st July 2003. In Van de Hurk v. Netherlands, April 1999, (1994) 18 EHRR 481 it was held that a detailed answer to every argument is not required. The court has also held that it is not required to answer all the questions raised and that it was not its role to examine whether arguments are adequately met. In Van de Hurk the failure to discuss or refer explicitly to each submission was not unfair as long as the court heard the parties and their pleadings were considered. The fact that the court may have considered them as irrelevant or unfounded and implicitly rejected them could not amount to a breach.
By way of guidance the court stated that the extent of the obligation to give reasons may vary according to the nature of the decision. It was necessary to take into account also the diversity of submissions that a litigant may bring into court and the differences between contracting states with regard to statutory provisions, customary rules, legal opinion, and presenting and drafting of judgments – in other words all the circumstances of the case.
Kearns J. stated in the Supreme Court decision in Dublin City Council v. Fennell (Unreported Supreme Court 12th May, 2005) that the European Convention on Human Rights Act 2003 does not purport to incorporate the ECHR directly into domestic law "rather (it) imposed an obligation that, when interpreting or applying any statutory provision or rule of law, a court shall, insofar as is possible, and subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions". S. 2 ECHR Act 2003.
Thus while it appears that it is mandatory for a court in this jurisdiction to provide reasons for its decisions, the authorities do not indicate that this requirement as interpreted by the Court of Human Rights relates to giving reasons for decisions at an interim stage during the course of the hearing. Such has not been the practice in these courts and no authority has been opened to me that such is required. Accordingly I hold that there was no obligation upon me to give reasons for such interim rulings as I made during the course of the hearing. The fact that I did indicate at the end of the second day that I would make an interim ruling in writing arises from the practical need of the hearing to have matters set out with clarity so enabling the hearing to resume in Letterkenny in an orderly fashion.
Section 16 of the Courts of Justice Acts 1947 provides that a Circuit Judge may state a case on a question of law to the Supreme Court in McHale v. Devally (Unreported, High Court, Lardner J., May 20th, 1993) Lardiner J. held that the correct test was:
1. Whether there was an arguable case of some substance placed before the Circuit Court Judge by the applicant and
2. Whether the interests of justice between the parties concerned requires the stating of a case. The discretion to state a case conferred under s. 16 must be exercised by a Circuit Court Judge was given further consideration in McKenna v. Deary (Unreported, Supreme Court, 11th December, 1997).
Here the Supreme Court held that as is usual with all court discretions, the discretion was one that was required to be exercised judicially. The Supreme Court considered that the nature of the discretion and held that the procedure set out under s. 16 is primarily for the guidance and assistance of the judge who asked to state a case. When the judge is satisfied that it is not necessary to state a case he is entitled to refuse such an application. The Supreme Court held that the test as to whether a Circuit Court judge should exercise his discretion to state a case was whether there was substantial weighty and solid grounds requiring a decision by the Supreme Court on a question of law at issue by one of the parties to the proceedings. It considered the McHale test as too broad and that a stricter criterion would be preferable. The McKenna test was later followed in Sports Arena Limited v. Devally ...Unreported, High Court, Kinlen J. 30th July, 1998.)
Cases stated from the High Court
Section 38(3) of the Courts of Justice Act 1936 provides that a judge hearing an appeal under section 38 may refer any question of law arising in the appeal to the Supreme Court by way of case stated and "may adjourn the pronouncement of his judgment or order on such appeal pending the determination of such case stated".
The wording employed in section 38(3) is identical to that used in section 16 of the Courts of Justice Act 1947 and this raises the question of at what stage in the proceedings a judge may state a case for determination by the Supreme Court.
This was considered in Dolan v. Corn Exchange [1975] I.R. 315 where a High Court judge hearing a circuit appeal stated a case to the Supreme Court in relation to an application for a new tenancy pursuant to the Landlord and Tenant Act 1931. When the matter was referred back to the High Court, the landlord sought to adduce any additional evidence and a further case was stated for the opinion of the Supreme Court on the question of the jurisdiction of the High Court to consider such evidence. The Supreme Court held it could not entertain a second case stated in the same appeal. However they took the opportunity to examine the manner in which section 38(3) should operate. Henchy J. felt that a judge has jurisdiction to state a case only at the stage of the hearing when the adjournment of the appeal is for the pronouncement of judgment in order. However he said that this does not mean that the judge's jurisdiction is necessarily limited to pronouncing the judgment or order.
If a High Court judge refuses to state a case there appears to be no right to challenge his resolution of the appeal. His refusal to state a case is not a judgment or order and of course no decision by a High Court judge can be challenged by judicial review. However Article 34.4.3 of the Constitution states that all decisions of the High Court are appealable to the Supreme Court.
This matter was raised in Eamonn Andrews Productions Ltd v. Gaiety Theatre Enterprises [1973] I.R. 295. This involved an application by the applicants for a new tenancy pursuant to Part III of the Landlord and Tenant Act 1931 was resisted unsuccessfully by the respondents in the Circuit Court and on appeal in the High Court. The respondents sought to appeal to the Supreme Court and a question arose as to whether such a right to appeal existed. Counsel for the respondents submitted that they were entitled to a right of appeal to the Supreme Court by virtue of Article 34 of the Constitution which conferred on that court an appellate jurisdiction from all decisions of the High Court with such exceptions and subject to such regulation as might be prescribed by law. However the Supreme Court held that a decision of the High Court which determined an appeal from the Circuit Court under Part IV of the Courts of Justice Act 1936 could not be the subject of an appeal to the Supreme Court since section 39 had been re-enacted by section 48 of the Courts Supplemental Provisions Act 1961, after the coming into force of the 1937 Constitution and the provisions therefore constituted a valid exception to the appellate jurisdiction of the Supreme Court in accordance with Article 34.4.3.
The question as to whether the court should state a case may be one to be considered at the closing of the plaintiff's case or before the end of the hearing and before the determination of the court of the final decision and I await the submissions of the parties in relation to whether a case should be stated and when the appropriate time for making such application may arise further on in the hearing.
As regards the evidence given in the case the main thrust of the plaintiff's evidence was that he had known the ownership and outline of the premises during his school days and youth but he had no personal knowledge of the title. He affirmed that he was claiming entitlement to the premises as the beneficiary of the will and he conceded his lack of familiarity with the title. The plaintiff has relied on the fact that all relevant documents of title not in the possession of the plaintiff were discovered by the defendant Josephine Riney and relies on the notice to admit and notice to produce procedure as proof of the title. I have indicated that I am satisfied that the plaintiff has made out a prima facie case subject to satisfying me in relation to the evidential aspect claimed for documents in the possession of Ms. Riney. The case should proceed in Letterkenny at the earliest moment that can be arranged between the parties. This is an interim judgment made for the purpose of facilitating case management, bearing in mind the need to bring proceedings to a conclusion in the most expeditious way and having regard to the fact that two full days were taken up with the hearing in Letterkenny to date. I have indicated to the parties in Letterkenny that judgment is for the guidance of the parties conditional and open to further submissions of the parties as they think appropriate.
Approved: Abbott J.