High Court of Ireland Decisions

[2025] IEHC 164

THE HIGH COURT

JUDICIAL REVIEW

[2022/419JR]

BETWEEN:

MICHAEL GRIMES

APPLICANT

AND

A CORK CIRCUIT COURT JUDGE FOR THE TIME BEING AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

 

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 21^st day of March, 2025

 

INTRODUCTION

 

1.                  This judgment arises from an application by the respondent to set aside an order granting the applicant leave to apply for judicial review, on the basis of material non-disclosure. The proceedings and this application have had a somewhat convoluted history which will have to be described, but the application nets down to a straightforward proposition that when the applicant sought leave to apply for judicial review on an ex parte basis he failed to disclose certain material facts to the High Court. For the reasons set out in this judgment I am satisfied that in the exercise of my discretion the motion should succeed and the grant of leave to apply for judicial review should be set aside.

 

2.                  The overall proceedings arise from criminal proceedings in which on the 17 May 2018,  the applicant was convicted of certain revenue offences on foot of a guilty plea while he had legal representation. The Circuit Criminal Court imposed a sentence of imprisonment which was suspended subject to conditions, which were agreed to by the applicant. The respondent considered that the applicant had breached certain of the conditions and issued a motion, returnable to the 18 May 2022, to re-enter the proceedings pursuant to section 99 of the Criminal Justice Act, 2006.

 

3.                  The applicant subsequently initiated these proceedings in June 2022 seeking inter alia, to quash the motion to re-enter. When the High Court granted leave to apply for judicial review it was not asked to and did not impose a stay on the proceedings in the Circuit Criminal Court. Nevertheless, the proceedings in the Circuit Criminal Court have been adjourned from time to time pending the resolution of these proceedings, with the consequence that the motion has not been dealt with in that court for close to three years.

 

BACKGROUND

 

4.                  On the 27 June 2022, by ex parte application, the applicant applied for and was granted leave to apply for judicial review. The applicant was a litigant in person for the purposes of the judicial review proceedings. The reliefs claimed were diffuse, but it appears that the primary relief sought included (a) an order quashing a notice of re-entry of certain criminal proceedings and (b) a declaration that section 99 of the Criminal Justice Act, 2006 as amended by the Criminal Justice (Suspended Sentences of Imprisonment) Act, 2017 is contrary to the Constitution.

 

5.                  The Notice of Re-entry in question was dated the 9 March 2022, and it was served by the Director of Public Prosecutions (the DPP) on the applicant through his solicitors. The Notice states:

"TAKE NOTICE that an application will be made at 10.30am in the forenoon of the 26^th April 2022 before the Honourable Judge sitting at Anglesea Street, Cork for the conduct of criminal business, to re-enter the matter of DPP -v- Michael Grimes, Bill No. CYDP0335/2015, in which sentence was passed by His Honour Judge Brian O'Callaghan on the 17^th May 2018, which application will be grounded on the oral evidence to be adduced by members of An Garda Siochana."

 

6.                  The ex parte application was grounded on a reasonably lengthy affidavit sworn by the applicant on the 23 May 2022. In his affidavit, the applicant seems to take issue with a variety of aspects of the notice of re-entry, and issues appear to be raised in relation to the factual basis for those criminal proceedings and/or the basis for the application for re-entry. In his ex parte docket, the applicant also contends that the Circuit Criminal Court does not have jurisdiction to deal with the matter as "the matter is currently under the jurisdiction of this Honourable Court a decision of which in the matter was appealed to the Court of appeal and now expected to appeal to the Supreme Court." I highlight that last contention as it is the only reference to other proceedings before the Superior Courts.

 

7.                  The applicant frankly admits in his affidavit that his application "is not up to [his] usual standard" and this is because, as he claims, at that time he was unwell. The reference to his "usual standard" appears to be a reference to the fact that the applicant has acted as a litigant in person in multiple matters before the courts over the years, and the references to ill health have been a persistent feature of the litigation in the subsequent years.

 

8.                  It would be fair to observe that the applicant appears to respond in a detailed way to the notice of re-entry and a letter from An Garda Síochána to the applicant, which was dated the 31 October 2020, both of which documents are exhibited. The letter runs to 10 pages and addresses, among other matters, allegations that the applicant breached a condition on which his sentence in respect of VAT offences was suspended on the 17 May 2018 at Cork Circuit Court. The letter sets out the conviction and the conditions upon which sentence was suspended, and then sets out a number of matters that are contended to amount to a breach of the conditions.

 

9.                  Having been granted leave to apply for judicial review, on the 8 July 2022 the applicant issued a notice of motion seeking the relief in the judicial review which was returnable to the 11 October 2022.

 

THIS APPLICATION

 

10.              On the 27 September 2023, the DPP issued a notice of motion seeking an order setting aside the grant of leave. That application was grounded on an affidavit sworn by John Magee, Assistant Principal, Inspector of Taxes, and an Authorised Officer of the Revenue Commissioners. Mr. Magee sets out the following information.

 

11.              On the 17 May 2018, the applicant was sentenced to two and a half years' imprisonment by the Cork Circuit Criminal Court. The indictment before the Court, CYPP0335/2015, comprised seven counts. The applicant pleaded guilty to and was convicted on the first count, which related to a VAT offence in relation to a particular period. The remaining counts referred to VAT offences for different periods. A nolle prosequi was entered in respect of four counts, and the remaining two counts (to which the applicant also pleaded guilty) were taken into consideration as part of the sentence on the first count. The sentence was fully suspended for a period of five years subject to the applicant complying with a number of conditions.

 

12.              The DPP contends that there have been multiple breaches of the conditions, and the DPP asserts that the applicant has been made fully aware of the reasons why it is asserted that the conditions were breached.

 

13.              Mr Magee then sets out a chronology of relevant events:

·               4 May 2022: The application was opened in the Circuit Criminal Court and then adjourned. It can be noted that while the applicant acted for himself in these judicial review proceedings he was legally represented in the matter before the Circuit Criminal Court.

·               18 May 2022: The application was scheduled for hearing. The applicant did not attend and submitted a medical certificate indicating that he was unfit to attend court. The matter was adjourned to the 21 June 2022.

·               19 May 2022: Notwithstanding his medical difficulties, the applicant travelled to Dublin to file papers in the within judicial review proceedings.

·               21 June 2022: The re-entry application was further adjourned because of the judicial review proceedings.

·               27 June 2022: The High Court granted the applicant leave to apply for judicial review in these proceedings.

 

14.              The DPP asserts that the grounds on which the applicant sought leave to apply for judicial review were selective, that he did not disclose relevant matters, and that there is no basis for the proceedings in the Circuit Criminal Court to be prohibited given that he is legally represented and it must be presumed that he will obtain a fair trial.

 

15.              Mr. Magee draws the attention of the court to other judicial review proceedings initiated by the applicant, which bore record number 2019/56 JR, (the 2019 proceedings). In the 2019 proceedings, the applicant sought to quash all or part of the sentence pronounced on the 17 May 2018. On the 28 January 2019 the applicant sought leave to bring the 2019 proceedings. He was directed to place the DPP on notice of the application. The application was adjourned from time to time at the applicant's request. The respondent ultimately considered that the applicant was engaging in delaying tactics and issued a motion seeking to dismiss the application for leave to apply for judicial review on grounds of want of prosecution. That motion came on for hearing in tandem with the applicant's application for leave on the 23 March 2022.

 

16.              The applicant at that point indicated that he intended to withdraw his application for leave in the 2019 proceedings. In those premises, the respondent agreed to withdraw its motion without seeking any costs. The High Court noted the withdrawal of the application, refused the applicant leave to apply for judicial review and dismissed the leave application, and struck out the respondent's motion.

 

17.              The applicant then filed an appeal to the Court of Appeal against the refusal of his ex parte application. On the 6 May 2022, the Court of Appeal adjourned the appeal generally on the basis that it was moot.

 

18.              The DPP asserts that the 2019 proceedings ought to have been but were not drawn to the attention of the High Court when the application for leave to apply for judicial review was made in these proceedings on the 27 June 2022, shortly after the 2019 proceedings were disposed of in the Court of Appeal.

 

19.              The second issue raised by Mr. Magee relates to a lease dated the 21 April 2013 over a premises called "Kanes of Granard" that the applicant referred to and exhibited in his grounding affidavit in these proceedings. The applicant relied on that lease to show that the premises were demised to him for a period of 12 years, and that he therefore was entitled to enter the premises. This is one of the issues raised by An Garda Síochána in the letter from October 2020.

 

20.              Mr. Magee highlights that the lease is similar to but materially different from a lease that was relied upon in further proceedings, Myles Kirby v G Motor Sales 2017/3853 P (the 2017 proceedings). Both leases appear to be for the same premises.

 

21.              In the course of an interlocutory injunction application in the 2017 proceedings, the High Court rejected a claim that a company controlled by the applicant held the lease in question. That arose in circumstances where the purported lessor had signed an acknowledgement that there never was a valid lease in the first place. That issue arose in the context of protracted proceedings involving the Revenue Commissioners and a Mr. Kane. The then President of the High Court, Kelly P., expressed very strong views in a judgment that the applicant had colluded with Mr. Kane in efforts to frustrate the Revenue Commissioners in recovering very substantial revenue debts. While that ruling concerned an interlocutory injunction application it would be fair to observe that the ruling raised extremely serious doubts about the validity of that version of the 2013 lease.

 

22.              Furthermore, as part of his challenge to the notice of re-entry in these proceedings, the applicant has asserted that he was unaware that a receiver had been appointed over part of the premises comprised in the "Kanes of Granard" premises. Mr. Magee avers that this averment cannot be true for detailed reasons relating to the applicant's involvement in various proceedings concerning the Revenue Commissioners' efforts to pursue Mr. Kane, including that the applicant had engaged in correspondence with the receiver's representatives shortly before the commencement of these proceedings.

 

23.              In any event, Mr. Magee contends that if the applicant sought to rely on the lease in these proceedings, at the very least he was obliged to disclose that the other lease had been addressed in the 2017 proceedings along with the other matters that Mr. Magee described.

 

24.              The applicant appears to have delivered an unsworn affidavit in or about November 2023. In that document the applicant refers to his ill health and also asserts that he held a signed valid lease to the premises in Granard, and that he is not trespassing at the property. In large part, even if there was a sworn affidavit it is largely argumentative and addresses issues around the dispute around the Granard properties. The applicant does not address the issues of disclosure raised by Mr Magee.

 

THE PATH TO A HEARING OF THIS APPLICATION

 

25.              Thereafter, the respondent's motion in these proceedings took a tortuous route to hearing, during which period the application for re-entry in the Cork Circuit Criminal Court was adjourned and remains awaiting a hearing. The efforts made by the DPP to progress matters is set out in an affidavit sworn by Mary O'Donoghue on the 26 September 2024. Ms. O'Donoghue is solicitor working in the Office of the Director of Public Prosecutions.

 

26.              It appears that the respondent's motion was scheduled for hearing on the 14 December 2023. That date was vacated because the applicant was suffering from ill health. The hearing was re-scheduled for the 23 July 2024. On the 18 July 2024 that date was vacated at the request of the applicant, again on the basis of a claim of ill health. At that point and in light of the many delays in progressing matters, the High Court (Hyland J.) directed that the respondent's motion be heard on the papers. A timetable was fixed for the exchange of legal submissions and the matter was listed for mention on the 29 October 2024.

 

27.              On the 30 July 2024 Ms. O'Donoghue notified the applicant of what had transpired, and the applicant acknowledged this by email on the same date. Ms. O'Donoghue followed up her correspondence with further reminders on the 3 September 2024 and the 19 September 2024. On the 24 September 2024, the applicant replied indicating that he was suffering from illness and would respond as soon as possible.

 

28.              In an effort to progress matters, the respondent filed written legal submissions on the 23 October 2024. On the 29 October 2024, the matter was listed for mention before the High Court. On that date, the applicant again claimed that he was unwell. The High Court gave the applicant further time to file papers and for the hearing to proceed on the papers. Hence, the applicant was afforded until the 9 January 2025 to file submissions, the matter was to be listed for mention on the 21 January 2025, and the hearing was to occur on the 6 February 2025.

 

29.              The applicant did not file legal submissions. On the 21 January 2025, the applicant appeared at the High Court and requested a further adjournment based on his ill health. The Court directed that the matter had to proceed and refused to vacate the hearing date in the absence of a proper medical report.

 

30.              Again, the applicant did not file submissions. On the 5 February 2025, the applicant emailed the address for non-jury / judicial review business in the High Court. He stated that he was unwell and would not be able to take part in any hearing. He attached a certificate prepared by a GP which stated: "This is to certify in my opinion that the above named patient is/was suffering from medical issues And is unable to attend Court". On the 6 February 2025 the applicant sent a further email stating that he was not able to attend court due to ill health.

 

31.              Overall, the medical information was wholly unsatisfactory in light of the history of the proceedings and the considerable difficulties encountered by the respondent in seeking to progress their motion. The medical certificate did not identify any specific medical information or seek to connect any illness to the applicant's inability to attend court. Moreover, it was clear that the matter could and ought to be heard on the papers and there was no satisfactory explanation from the applicant of why, even if he could not participate in an oral hearing either remotely or in person, he had not provided written submissions on the respondent's application between July 2024 and February 2025.

 

32.              The matter was listed before me on the 6 February 2025. Notwithstanding the unsatisfactory nature of the situation that presented, the respondent very fairly proposed that the applicant should have one final opportunity to file written submissions. In the premises, I agreed with the proposal and directed that the applicant should have a final period of three weeks to file any written submissions and that at the expiration of that period I would proceed to adjudicate on the motion on the basis of the papers that had been submitted.

 

33.              In a further affidavit dated the 25 February 2025, Ms. O'Donoghue set out that she notified the applicant of the court's directions by registered post and email on the 7 February 2025. It was made clear to the applicant that if submissions were not received by the 27 February 2025 the court would proceed to adjudication. The applicant did not take up the opportunity to deliver submissions and did not engage in any further correspondence.

 

ADJUDICATION

 

34.              As I have explained above, the applicant has chosen not to make any written legal submissions in response to the respondent's motion. Insofar as he has delivered an unsworn affidavit and sought adjournments of the hearing of this motion, I am taking it that he wishes at some point to progress the proceedings and therefore cannot be taken as implicitly conceding the application. Moreover, in any event in proceedings of this nature I consider that the correct course of action is to consider the application and to decide whether it is appropriate to exercise my discretion and grant the relief sought by the DPP.

 

35.              The general principles regarding the duty to disclose relevant matters in an ex parte application for leave to apply for judicial review are summarised, correctly in my view, by the authors of Delaney & McGrath on Civil Procedure, (5^th Ed., 2023), at paras 31-142 to 31-143 as follows (I have inserted the relevant citations in place of the authors' footnotes):

"[31-142] It is important to emphasise that, given that the application for leave is made ex parte, the applicant has a duty of uberrimae fides, i.e. utmost good faith, and must put all relevant factual and legal matters before the court even if they do not support the grant of leave. As explained by Kelly J in Adams v Director of Public Prosecutions [[2001] 2 ILRM 401]:

On any application made ex parte the utmost good faith must be observed, and the Applicant is under a duty to make a full and fair disclosure of all of the relevant facts of which he knows, and where the supporting evidence contains material misstatements of fact or the Applicant has failed to make sufficient or candid disclosure, the ex parte order may be set aside on that very ground. ... The obligation extends to counsel. There is an obligation on the part of counsel to draw the judge's attention to the relevant Rules, Acts or case law which might be germane to his consideration. That is particularly so where such material would suggest that an order of the type sought ought not to be made.

 

[31-143] If an applicant fails to comply with this obligation then, as discussed further below, this may provide a basis for an application to set aside the grant of leave. So, in G.M. v I.M., [[2023] IEHC 95] Simons J set aside a grant of leave in circumstances where the "misstatements in, and omissions from, the statement of grounds and verifying affidavit [could not] be overlooked as merely technical or peripheral" and instead went "to the very heart of the applicant's case." He said that the description of the hearing which had taken place before the Circuit Court had been grossly misleading and he made it clear that he would not have made the order granting leave had an accurate description of the hearing before that court been provided to him at the time of the ex parte application. However, he added that "[i]t should be emphasised that this is not being done to 'punish' the applicant for his material non-disclosure, nor to serve as a 'warning' to other litigants. Rather, it reflects the reality that the applicant's case, now that it has been laid bare, does not meet the threshold prescribed for the grant of leave."

 

36.              The purpose of an application such as this is not to penalise or punish the applicant but instead to analyse whether leave ought to have been granted if proper disclosure was made. It cannot be overemphasised that when a party makes an ex parte application to the Court seeking relief the Court is almost entirely dependent on the applicant to ensure that the court is properly apprised of all relevant matters. When granted, ex parte applications lead to real legal effects. In this case, the grant of leave to apply for judicial review had the effect of requiring the DPP to expend resources defending the case and bringing the within motion. Moreover, while no stay was sought or granted, the Circuit Criminal Court, for what I assume are practical and precautionary reasons, has not determined the application to re-enter the suspension of the custodial sentence in the underlying proceedings.

 

37.              I will now turn to what is said by the DPP in its written submissions. According to the DPP, the following matters ought to have been disclosed if a proper and candid ex parte application was being made:

a.             That the suspended sentence was imposed on foot of a guilty plea in proceedings where the applicant was legally represented.

b.             That the applicant expressly agreed to be bound by the conditions attaching to the suspension of his sentence.

c.             That the applicant applied in the 2019 proceedings for orders quashing his conviction and sentence in the Circuit Court.

d.             That the 2019 proceedings were struck out on the 23 March 2022 on the basis that the applicant was withdrawing his application.

e.             That the applicant in these proceedings exhibited a lease dated the 21 April 2013 of the Kanes of Granard premises without referring to the fact that a lease dated the same date and relating to the same premises had been relied on and called into question in the ruling of Kelly P. in the 2017 proceedings.  

f.              That the applicant in his grounding affidavit in these proceedings suggested that he was unaware that receivers had been appointed over those premises (or part of the premises) when in fact he was so aware and earlier had entered into correspondence with the solicitors for the receivers.

g.             That the applicant had legal representation for the purposes of the application to re-enter the criminal proceedings and there was no reason given why he could not expect a fair trial.

 

38.              The DPP refers to the observations made by Hedigan J. in Dean v. DPP [2008] IEHC 87, where he stated in relation to the necessity for candour in ex parte applications:

"I cannot overemphasise the importance of this principle. The "leave to apply" provision in the rules is an essential part of the system of Judicial Review and is what makes it all work. But without confidence on the part of any Judge hearing the application that all relevant matters and law both for and against the application are before him or her the essential ex parte nature of the "leave to apply" system cannot continue.

...

Indeed I do not think I need even go that far because it seems to me that when any part of the factual matrix of a case is omitted from the matters presented to a Judge on an ex parte basis the test as to whether this amounts to a material non-disclosure should be whether the information was relevant. If it was then it should have been brought to the attention of the Judge, who may weigh the actual importance of that information to the case. In my view the statements made were highly relevant."

 

39.              It can be noted that not only has the applicant failed to provide written submissions, despite multiple opportunities he has not sought either to contradict the DPP's assertion of material non-disclosure or to provide some explanation as to why the court was not provided with a full description of the relevant matters.

 

 

40.              In all the circumstances I am satisfied that the DPP ought to succeed. When the applicant sought leave to apply for judicial review there was a significant failure to disclose material information:

a.             The applicant did not disclose that he had commenced and then withdrawn judicial review proceedings in which the relief sought included quashing his conviction and sentence in the Circuit Criminal Court.

b.             The applicant sought to assert that the Circuit Criminal Court no longer had jurisdiction over the matter because of proceedings in this Court and the Court of Appeal. That clearly was not the case. The proceedings in the High Court had been struck out because the applicant indicated that he no longer wished to proceed with them. The subsequent appeal to the Court of Appeal had been adjourned generally. Hence there were no live issues before the High Court or the Court of Appeal. It was wrong to suggest otherwise, and this was a matter of which the applicant must have been fully aware. Having withdrawn his challenge to the May 2018 conviction and sentence, the applicant should not have suggested that there was some underlying frailty to the notice for re-entry.

c.             The applicant portrayed himself as elderly and unwell and therefore in some sense at a disadvantage in addressing the notice of re-entry. However, he did not explain that he had the benefit of legal representation in the context of the Circuit Criminal Court matters, which certainly would have put a very different complexion on his contentions.

d.             The applicant sought in some sense to suggest that he was unaware of the basis for the re-entry application but at the same time appeared very able to respond to the reasons for re-entry. In itself, that was not particularly fatal for his application. The difficulty was that in attempting to persuade the High Court that An Garda Síochána were acting in some sense improperly or on the basis of incorrect information, he sought to rely on a lease the nature of which he must have known was at the very least highly contentious or questionable. In seeking to rely on that lease the applicant did not disclose or suggest that the same issues were the subject of considerable controversy and protracted legal proceedings.

 

41.              For these reasons I consider that this is a situation in which there was significant material non-disclosure at the ex parte stage. I can also note that it must be presumed that the applicant will obtain a fair trial in the Circuit Criminal Court and have the opportunity inter alia, to obtain proper disclosure of and to contest the matters relied upon by the DPP. In those premises I am satisfied that it is appropriate to set aside the grant of leave.

 

42.              As this judgment is being published electronically my provisional view is that the respondent is entitled to the costs of the application. However, I will list the matter for any argument that may be required in relation to the final form of orders before me at 10.30am on the 2 April 2025.