Neutral Citation Number [2008] IEHC 172

Case No. 2008/3377 P

THE HIGH COURT

BEFORE THE HONOURABLE MR JUSTICE SHEEHAN

_____________________

10 JUNE 2008

______________________

PATRICK O’DOHERTY

V. 

THE ATTORNEY GENERAL, LIMERICK COUNTY COUNCIL &
NOTICE PARTIES

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JUDGE:  In the motion before the court the plaintiff seeks an interlocutory injunction restraining Limerick County Council and the notice party Fianna Fail from co‑opting a new member to fill the casual vacancy that has arisen on foot of the resignation of Councillor John Griffin from Limerick County Council on the 31st of March 2008.

The interlocutory injunction is sought pending the determination of the substantive proceedings, which were commenced by way of plenary summons on the 28th of April 2008.

In these proceedings the plaintiff seeks to challenge the constitutionality of Section 19 of the Local Government Act 2001. In particular, he contends that the mechanism contained in Section 19 for filling casual vacancies in local authorities through co‑option infringes the requirement of Article 28(2) of the constitution that all local authorities be directly elected.

The plaintiff/applicant Mr Patrick O'Doherty is a bona fide applicant and Irish citizen entitled to vote in the Rathkeale electoral area of Limerick. He contends there is a serious issue to be tried.

Article 28(2) of the constitution states: "There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this constitution, be so determined and shall be exercised and performed in accordance with law."

Mr O'Doherty emphasises the words "directly elected local authorities".

The defendants and notice party, who all strenuously oppose the application for interlocutory relief, draw the Court's attention to Article 28(5) which states that: "Casual vacancies in the membership of local authorities referred to in Section 2 of this article shall be filled in accordance with law."

They also argue that the Court should be slow to prevent a public body from exercising its statutory duty and that due weight must be given to the presumption of constitutionality that attaches to the Local Government Act of 2001.

The principles governing the granting of interlocutory injunctions are well established. The plaintiff must establish that there is a fair question to be tried, that damages would not be an adequate remedy and that the balance of convenience lies in favour of granting the injunction.

In considering the balance of convenience the case law indicates that in the circumstances of a case like this, not only must I bear in mind the presumption of constitutionality but also the general principle that a court should be slow to prevent a public body from exercising its statutory responsibility.

Bearing in mind these general principles, the point that weighs heavily with me is the effect that the granting of an injunction would have on the Rathkeale electorate. If I grant an injunction restraining the local authority from filling the casual vacancy, which has arisen, the constituents of the Rathkeale electoral area will be left without one of their representatives pending the full hearing of these proceedings.  The four remaining members and their political party affiliations will not properly reflect the preferences expressed by the constituents of Rathkeale at their previous local election, so that their right to be fully represented will be prejudiced.

On this ground I hold that the balance of convenience lies with the defendants and accordingly, I refuse the plaintiff/applicant his application for interlocutory relief.
MR O'DOHERTY:  Thank you, Judge.
JUDGE:  You are not going to apply for costs, are you?
MR O'DOHERTY:  No, I am going to appeal.
JUDGE:  That is your prerogative.
MR O'DOHERTY:  That's what I wanted to ask you.
JUDGE:  It is not this court's function to advise you. I want to simply now see if there are any other applications following my refusal of the interlocutory application.
MS HEALY REA:  Judge, in view of your decision, I am instructed to seek my costs on behalf of the first and second named defendants, that is Ireland and the Attorney General.
MR McNAMARA:  Judge, the position of the County Council, if the costs are reserved to the trial of the action, that position would be acceptable to my client.
MR O'DONNELL:  That is my position also.
JUDGE:  At any rate, Mr O'Doherty has raised a point that is of public importance and in those circumstances, what I propose to do is to simply reserve the question of costs to the hearing of the action.
MR O'DOHERTY:  That is very, for want of a better word, good. Well, I thank you for hearing the matter at great length yesterday. I can't say that I would have anticipated, naturally one wouldn't, the judgment of the court. I hear in what has been said this morning a basis for appeal and the reason I rose before the question of costs is that, given the timeframe and given the 21 days in which it is for me to go to the other court, then I simply, as we are all here together, as I have shown my cards all along, I would say that I see a reason to go to the court above.
JUDGE:  It is absolutely your right and your entitlement.
MR O'DOHERTY:  I understand, Judge and I am not asking you to grant me something which was mine before I came to the court.
JUDGE:  No I know that. Mr O'Doherty, I am sorry now, I have given my judgment.
MR O'DOHERTY:  May I take your judgment and take it with me?
JUDGE:  In due course you can bespeak a copy of the judgment when the stenographer's note of the judgment is ready and I have had an opportunity just to ensure that it fits with what I have said.
MR O'DOHERTY:  I don't want to find myself, no more than your good self, in Ballingarry this day week cutting my grass, and the County Council having co‑opted Mr Mulcair, and everybody being upset, so do they stop with the process?
JUDGE:  I cannot advise you. I can simply deal with my judgment at this point in the case. Thank you.

(Court dealt with other matters) 
 
JUDGE:  Mr O'Doherty? 
MR O'DOHERTY:  Judge, may I ask for a stay on your order this morning?  The effect of which would be that the co‑option would go ahead next Monday, but may I ask that you stay that?  I have spoken to the other side and in the absence of a stay, on your refusal, the effect would be that notwithstanding that I have started proceedings in the Supreme Court, with the greatest respect against your decision this morning, matters would become unduly complicated.  So would I ask you to order a stay on the effect of your refusal, refusal of my application for an interlocutory injunction, it's complicated, Judge, but there you go.
JUDGE:  I gave you my judgment this morning.  
MR O'DOHERTY:  Yes, you did indeed, and it's kindly perfected.  
JUDGE:  And I presume you put the other parties on notice that you were proposing to make this application?
MR O'DOHERTY:  Yes.  And they are determined, I have spoken to them many times this afternoon, they are determined to proceed.  And I submitted honourably and decently that the co‑option was damaged and of unenvisaged effect, Judge, and I would ask that you help me as best you can.
JUDGE:  I'm not disposed to put any stay on the order, even if I could do that I'm not proposing to do so.  That being so, I'm going to refuse your application. 
MR O'DOHERTY:  Okay.  I need to go to the other courts on the matter and I thank you. 
JUDGE:  Thank you.

Case adjourned