Shao v Minister for Justice and Equality (No. 2) [2020] IEHC 68 (03 February 2020)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of February,

1. Withholding relevant information from the Court is not a good look. That look is not

improved where it’s the State that’s doing the withholding, or, indeed, where some of the

withholding was done on foot of a conscious decision by State counsel. Nor does it

particularly assist that the information withheld from the Court included material

previously obscured by not being separately identified when responding to an application

under the Freedom of Information Act, 2004; a response that was later relied on by the

2. I gave judgment in this case in Shao v. Minister for Justice and Equality (No. 1) [2019]

IEHC 826, dismissing the applicant’s application for certiorari of a deportation order.

While the judgment has been approved and published, no order has been perfected

because the matter was adjourned initially for the purposes of costs. A number of

affidavits have been filed since the date of the ex tempore judgment as follows:

(i). An affidavit of Eoin McGuigan, solicitor for the applicant, of 29th November, 2019,

which showed that it was likely that the address at which the notice under s. 3 of

the Immigration Act, 1999 was served had not in fact been registered with GNIB.

(ii). An affidavit of 13th December, 2019 of D/Garda Michael Byrne which inter alia

explained difficulties with the GNIB registration system and that the system locks

down so it cannot be updated after a point in time that is three months after the

expiry of the last permission of a particular applicant. Thus he was unable to update

the system on foot of the new address given to him by the applicant.

(iii). An affidavit of Mr. Alan King of INIS of 13th December, 2019 clarifying that what

was and was not exhibited in the original affidavits filed on behalf of the respondent

was decided on and dictated effectively by counsel for the respondent.

(iv). An affidavit of Alan King of 10th January, 2020 which disclosed that the two-page

minute, crucial to the (No. 1) judgment, was not separately identified in the

schedule of documents furnished under the Freedom of Information Act, 2004 but

rather was part of the set of documents that were described as a single document

“report from GNIB 10/11/2018” (not that the applicant or the court could have

3. The information contained in the first three affidavits is referenced in the written version

of the No. 1 judgment but obviously that information was not considered when deciding

to dismiss the application. I have now heard further helpful submissions from Mr. Conor

Power S.C. (with Mr. James Buckley B.L.) for the applicant and from Mr. Anthony Moore

4. Leaving aside purely consequential issues, Mr. Power’s application is now as follows:

(i). To reopen the (No. 1) judgment in the light of the additional material since the ex

(ii). If the judgment is reopened to make an order of certiorari.

6. The duty to disclose relevant material exists anyway even in civil plenary proceedings

although in that context it is relatively limited – one can stay silent about weak factual

points in one’s case as a general proposition but one cannot by silence create a

misleading impression (Meek v. Fleming [1961] 2 Q.B. 366. Philp v. Ryan [2004] IESC

7. The duty is however reinforced in the judicial review context where there is an obligation

on respondents to disclose all relevant factual material. As it is put in R. v. Lancashire

County Council, ex parte Huddleston [1986] 2 All E.R. 941 at 945, the respondent must

put “all the cards face upwards on the table” in view of the fact that “the vast majority of

the cards will start in the authority’s hands”. That principle has been applied and

reinforced in a very large body of case law, and is further discussed in Marc de Blacam,

3. As put by the Court of Appeal of England and Wales in Secretary of State for Foreign and

Commonwealth Affairs v. Quark Fishing Ltd. [2002] EWCA Civ 1409 a defendant whose

decision or action is challenged by way of judicial review owes a duty of candour to give a

8. In Tweed v. Parade’s Commission for Northern Ireland [2007] 1 AC 650, Lord Carswell

at para. 31 refers to “the obligation resting on a public authority to make candid

disclosure to the court of its decision making process, laying before it the relevant facts

4. In Treasury Holdings v. NAMA [2012] IEHC 66 at paras. 126 and 127 Finlay Geoghegan J.

approved the statement in Michael Fordham Q.C.’s Judicial Review Handbook (5th ed.) at

para. 10.4 that, “A defendant public authority and its lawyers owe a vital duty to make

5. The same principle was also applied by McDermott J. in McEvoy v. Garda Síochána

6. In R. (Citizens U.K.) v. Secretary of State for the Home Department [2018] EWCA 1812,

Singh L.J. at para. 106 referred to the “duty of candour and cooperation with the court”

on the part of respondents to “assist the court with full and accurate explanations of all

the facts relevant to the issues which the court must decide”. He quoted with approval

his judgment when sitting in the High Court in R. (Hoareau and anor.) v. Secretary of

State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin), at para. 20

that: “The duty of candour and co-operation which falls on public authorities, in particular

on HM Government, is to assist the court with full and accurate explanations of all the

facts relevant to the issues which the court must decide. It would not, therefore, be

appropriate, for example, for a defendant simply to off-load a huge amount of

documentation on the claimant and ask it, as it were, to find the ‘needle in the haystack’.

It is the function of the public authority itself to draw the court's attention to relevant

matters; as [counsel] put it at the hearing before us, to identify ‘the good, the bad and

the ugly’. This is because the underlying principle is that public authorities are not

engaged in ordinary litigation, trying to defend their own private interests. Rather, they

are engaged in a common enterprise with the court to fulfil the public interest in

7. In Lavery v. DPP (No. 3) [2018] IEHC 185, I endeavoured to summarise the eight

different situations in which a judgment could be reopened after it has been delivered.

The eight categories set out in Lavery may be viewed as exceptions to the general

principle of finality. The potentially relevant headings here are exception 1, where the

court can change a judgment order or simply change its mind prior to the perfection of

the order; exception 4, where the judgment has been procured by what is described in

Lavery as fraud but what also includes misleading the court; and exception 7, the general

ground of exceptional circumstances in the interests of justice and constitutional rights.

(To facilitate read-across with Lavery I will maintain this numbering system below.)

Exception 1: new evidence or change of mind by the court prior to perfection of the

8. In Re. L. and B. (Children) [2013] UKSC 8, no less than authority than Lady Hale said at

para. 19 that “there is jurisdiction to change one's mind up until the order is drawn up

and perfected.” As the order in the present case has yet to be perfected and as important

new information has come to my attention, this exception is clearly satisfied here.

9. The classic instance of the court reopening an issue where it had been misled is Meek v.

Fleming [1961] 2 QB 366. In that case Holroyd Pearce L.J. said at p. 379: “Where a party

deliberately misleads the court in a material matter, and that deception has probably

tipped the scale in his favour (or even, as I think, where it may reasonably have done so)

it would be wrong to allow him to retain the judgment thus unfairly procured. Finis litium

is a desirable object, but it must not be sought by so great a sacrifice of justice which is

and must remain the supreme object. Moreover, to allow the victor to keep the spoils so

unworthily obtained, would be an encouragement to such behaviour, and do even greater

harm than the multiplication of trials. In every case it must be a question of degree,

weighing one principle against the other. In this case it is clear that the judge and jury

10. Where Holroyd Pearce L.J. refers to the misleading being done “deliberately” that is

meant in a sense very different from “intentionally”. It does not particularly matter that

counsel’s decision to withhold information could be called a good faith judgment call that

ultimately simply did not find favour with the court; because precisely the same could be

said of Meek v. Fleming. Thus it is not a question of mala fides, there is no doubt that

counsel in the present case used bona fide judgment, but that does not mean that the

11. As submitted by Mr. Power, the information that was withheld was materially relevant to

a dispute in the case. Thus, the net effect was that the Court was misled, albeit

unintentionally on behalf of the respondent. This exception is also satisfied in the present

12. While Mr. Moore made some mileage out of Mr. Power’s side’s failure to work out for

themselves the possible implications of the registration details issue based on the

information that they had, the fact remains that the respondent had all of the relevant

information whereas the applicant only had some of it. On that basis, it is entirely

understandable that Mr. Power’s side did not realise the full implications of the issue.

13. Here the analogy is with Re. McInerney Homes Ltd [2011] IESC 31, per O’Donnell J. at

para. 62 where he said that, once the judge proceeded on an incorrect assumption, “he

was entitled, and indeed arguably obliged, to reopen the matter.” Thus if “the hearing

and indeed the judgment had proceeded almost on the basis of common mistake …

justice required that the matter should be reconsidered” (see also Odeh v. Minister for

Justice and Equality [2016] IEHC 654). This exception also applies here.

14. As any one of these three headings would be sufficient to reopen the matter, the

existence of three such independent grounds reinforces the conclusion that I should now

reopen the (No. 1) decision and determine whether an order of certiorari should or should

not be granted. Such a conclusion, for the avoidance of doubt, would have been arrived

at even assuming I was wrong about any two of the three exceptions discussed above.

(i). Was the address at which the notice under s. 3 of the Immigration Act 1999 was

served an address that was furnished to the local superintendent, being the local

registration officer, simply by virtue of being given to a member of the GNIB?

(ii). If not, did the applicant furnish an address for service for the purposes of s. 3?

Was an address furnished to the local superintendent simply by being given to a

16. In the (No. 1) judgment I said that there must be an assumption of joined-up

government and that giving the information to a member of the GNIB must be taken as

giving it to the local registration officer. However, it now turns out that the member

concerned was not in a position to enter the information on GNIB’s registration system. I

was not told that at the hearing of the matter – that only emerged after the No. 1

judgment. It is clear that while joined up government is desirable it does not in fact exist

here. On the evidence now before the court, there is no reason to think that D/Garda

Byrne effectively communicated, or even was in a position to effectively communicate,

the information to the local registration officer. The very notion of a registration officer

implies some form of formal registration of the details a person or persons concerned; yet

here the evidence is that D/Garda Byrne was not able to register those details on the

GNIB system. Thus service at the address so given to D/Garda Byrne is not service at an

address last furnished to the local registration officer in compliance with the statute.

Did the applicant furnish an address for service for the purposes of the legislation?

17. The phrase “address for service” is a term of art. It involves clear agreement by a person

to be legally bound by service of formal documents at the address so furnished. Almost by

definition, that is not the sort of thing that can be done implicitly. For all practical

purposes, there is no such thing as the implied furnishing of an address for service. In

almost all cases it must be furnished expressly. Giving a member of An Garda Síochána

one’s address orally which he or she writes in a notebook is not furnishing an address for

18. It is true that in the leave decision in M.M. (Georgia) v. Minister for Justice, Equality and

Law Reform [2011] IEHC 529, Hogan J. said that in circumstances where the applicant

had engaged in correspondence with the Minister at a particular address “it may be, of

course, that by engaging in correspondence with the Minister in this fashion, the applicant

– perhaps tacitly or impliedly – might be taken to have furnished an address for service to

the Minister for the purposes of s. 3 (6) (b) [of the Immigration Act, 1999]”. That

comment was made on very different facts of course and in the context of a course of

formal correspondence with the Department. But all that the judgment in M.M. (Georgia)

decides is that leave should be granted to argue the point. That is what Hogan J. means

by “of course” - that is, of course it could be argued that this point could be made. I do

not interpret this judgment as meaning that “of course” an address for service could be

furnished implicitly and I would not see that as a proposition that arises either as a

matter of course or indeed at all, except perhaps in the most exceptional circumstances.

In any event one might add that the phrase “of course” is not necessarily the most useful

one; it’s a bit patronising if one is actually stating the obvious, whereas if the point is

disputable it comes across as both patronising and blustering. I’m probably as much an

offender as anyone but, (like “it is clear that”), it’s a phrase probably best kept to a

minimum. M.M. (Georgia) decides only that the point is arguable. It does not assist the

State here, their argument having been now been made and rejected.

19. Q.W. v. Minister for Justice, Equality and Defence [2012] IEHC 375 is not relevant to this

case. It deals with a different situation where service was carried out in accordance with

the statute. In that case Hogan J. held that the fact that the applicant did not receive the

documentation was irrelevant. Q.W. was a case where the statute was complied with as

distinct from this case where it was not (see also per Finnegan J. as he then was in D.P.

v. Governor of the Training Unit [2001] 1 IR 492, M.A. (Pakistan) v. Governor of

20. Thus under this heading I find that the applicant’s conduct in giving an address to

D/Garda Byrne does not constitute furnishing an address for service and consequently the

21. I should note for the sake of completeness that I do not need to get into the issue of

discretion because the respondent was not asking for the case to be dismissed on a

discretionary basis. The statement of opposition consists purely of denials and there is no

positive plea regarding lack of candour, abuse of the system, or otherwise. The Supreme

Court decision in E. v. Minister for Justice and Equality [2018] IESC 20, [2018] 3 I.R. 317

was on the basis of the parties having agreed to compromise the case by the time

judgment was delivered so, consequently, the Supreme Court only had to deal with the

question of statutory interpretation and did not get to the question of discretion. The

point remains that if a person plays ducks and drakes with the immigration system there

comes a point where discretionary remedies may not be available even if they establish

22. Before concluding it is probably helpful to recapitulate what happened here. The applicant

made an FOI request to the respondent on 12th November, 2018. The reply on behalf of

the respondent dated 2nd January, 2019 did not disclose the existence of a minute from

D/Garda Byrne dated 2nd November, 2009 still less the attachment to that minute setting

out the applicant’s registration details as they then stood. On the contrary the response

obscured that information by referring only to a “report from GNIB 10/11/2018” which we

now know contained a series of other documents. The response may not constitute

compliance with the Freedom of Information Act, 2004 although I am not concerned with

that precise issue now. What I am concerned with is the fact that the FOI response was

relied on for forensic purposes and the details were not filled in for the purposes of the

proceedings by the respondent; so that that can be described as Withholding of

23. The proceedings were commenced on 8th February, 2019. A statement of opposition

dated 4th July, 2019 was filed on 5th July, 2019 and after further adjournment an

affidavit of D/Garda Byrne was sworn on 16th September, 2019 and filed on 1st October,

2019, and an affidavit of Mr. Jim Boyle was sworn on 20th September, 2019 and also filed

on 1st October, 2019. Neither of these affidavits or indeed the statement of opposition

disclosed the content of the applicant’s registration details as attached to the minute of

2nd November, 2019. Had they done so it would have been clear that the address

registered in respect of the applicant was different to the address at which the applicant

24. Furthermore, none of these documents disclosed that D/Garda Byrne was unable to

amend the GNIB registration system when the address was given to him by the applicant

on 23rd September, 2019. That is Withholding of Information No. 3.

25. All of these aspects of non-disclosure only came to light after the ex tempore decision in

favour of the respondent. I accept that there was no intention to mislead the Court on

behalf of anybody. In particular D/Garda Byrne, Mr. Jim Boyle and indeed Mr. Alan King

are totally blameless as they acted on counsel’s advices; as indeed are the CSSO. These

are the sort of matters that a reasonable person and a reasonable solicitor would rely on

counsel for. As far as counsel is concerned I accept Mr. Moore’s complete bona fides. The

work of a barrister involves many judgment calls, some quite fine. Such judgment calls

can’t all be right. This was a judgment call which ultimately did not find favour with the

court. There was no intention to mislead the court but unfortunately the court was misled.

That warrants, indeed requires, the previous conclusions to be revisited. As in Meek v.

Fleming, one can mislead by silence or by withholding information even if that is an

26. In Mr. Moore’s defence it is worth emphasising that there has been some lack of clarity

around what the respondent’s disclosure obligations precisely are, as in recent times the

emphasis has been more on the disclosure obligations on the applicant’s side of the

house. Perhaps the best statement is that of Singh L.J. quoted above, that the duty of

candour and cooperation which falls on public authorities is to assist the court with full

and accurate explanations of all the facts relevant to the issues which the court must

decide. Indeed Mr. Moore has no issue with that principle. It just wasn’t applied here. It

seems to me that the problem in this case was consideration of disclosure was over-

influenced by what the respondents case was, rather than by what the material issues

overall were, taking due account of the points being made by the applicant.

27. I also need to make the further point in Mr. Moore’s defence that the third element of

withholding information namely D/Garda Byrne not being able to update the system

wasn’t withheld by reason of any tactical consideration at all; it simply did not come to

counsel’s attention until after the ex tempore ruling. Thus that particular item is more

readily filed under the heading of human error rather than misjudgement.

28. The conclusion therefore is that I have jurisdiction to reopen the judgment, and that I

should do so, and on doing so I will reverse the original decision in the (No. 1) judgment

and I make an order granting certiorari quashing the deportation order. On the face of it

that may seem inconsistent, but that would be a misunderstanding. Significant new

information has come to light. In the aphorism attributed to John Maynard Keynes,

previously referred to in Seredych v. Minister for Justice and Equality (No. 3) [2019] IEHC

730 at para. 25, “When the facts change, I change my mind. What do you do, Sir?”

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Shao v Minister for Justice and Equality (No. 2) [2020] IEHC 68 (03 February 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC68.html Cite as: [2020] IEHC 68

High Court of Ireland Decisions