High Court of Ireland Decisions

THE HIGH COURT

[2025] IEHC 171

[Record No.: 2024/7121 P]

BETWEEN

NIALL MURPHY

PLAINTIFF

AND

 

BERNARD GLOSTER, FERGUS FINLAY, ANNE RABBITTE, ADRIAN TENNANT, CATHAL MORGAN, GERRY GLERKIN, DAMIEN MC CALLION AND HEALTH SERVICE EXECUTIVE

DEFENDANTS

JUDGMENT ex tempore of Mr. Justice Cregan given on 6th February 2025

1.                  This is an application by the intended plaintiff, Mr. Murphy, for an order dispensing with the requirement by him to pay court fees on (i) a plenary summons which he wishes to issue in the above matter and (ii) on a Notice of Motion and grounding affidavit, which he also wishes to issue in respect of these matters (Mr. Murphy has, apparently, issued a separate plenary summons in separate proceedings, and has paid the court fee on that document).

2.                  In my view, Mr. Murphy's application must be refused for the reasons set out below. 

3.                  Statutory Instrument 492/2014 provides at para. 3:-

"There shall be charged in the offices attached to the Supreme Court, the High Court and the President of the High Court and in district probate registries, in respect of each item set out in column (1) of each Part of Schedule 1, the fee set out in column (2) of the Part concerned opposite the mention of the item."

4.                  This provision is mandatory in its terms.  It provides that "There shall be charged" [the fees set out in the relevant part of the statutory instrument]. There are no provisions in this statutory instrument which provide, for example, for an exception where a Court otherwise so directs.

5.                  There are, however, a number of exemptions within the Statutory Instrument, one of which is s. 5(a), the section on which Mr. Murphy relies. Section 5(a) provides:-

"No fee shall be payable under this order in connection with

(a)       proceedings under Article 40.4 of the Constitution."

6.                  Article 40.4.1 of the Constitution provides that "No citizen shall be deprived of his personal liberty, save in accordance with law". Article 40.4.2° deals with the habeas corpus procedure, as do Articles 40.4.3°, and 40.4.4°. Article 40.4.5 provides that "Nothing in this section shall be invoked to prohibit, control or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion". Article 40.4.6° deals with bail.

7.                  The question of law, therefore, is whether the nature of Mr. Murphy's proceedings falls within Article 40.4. 

8.                  The proposed plenary summons was handed into court by Mr. Murphy and I have read it.  I have also asked Mr. Murphy some questions about the nature of his case.

9.                  In summary, his case is that the HSE produced a report into the care of his son, ("The Tennant Report").  Mr. Murphy's case is that this report is fundamentally flawed, riddled with inaccuracies, omissions and procedural flaws.  He alleges a breach of fair procedures, and that the author of the report had a conflict of interest. He also says that this report caused significant distress, harm and damage to his family, and he seeks €60 million in damages from the defendants.

10.              It is clear from the plenary summons, and Mr. Murphy's submissions, that his case, in substance, has nothing to do with personal liberty or with Article 40.4 of the Constitution.

11.              Mr. Murphy has, however, in various headings of his intended plenary summons referred to Article 40.4. Thus, at the beginning of the plenary summons, in what might be regarded as recitals to the plenary summons, he has stated that it is

"[i]n the matter of Article 40.4 of the Constitution of Ireland, which protects against the unlawful deprivation of liberty, and guarantees the right of citizens to seek judicial relief if their liberty is unjustly infringed, pursuant to Article 40.4 of the Constitution."

12.               Likewise, in the body of this proposed plenary summons, he has referred to Article 40.4.1° and has a heading in it under "The constitutional guarantee of personal liberty". 

13.              It is clear, however, in substance, that his case has nothing to do with Article 40.4.  Moreover, one cannot simply invoke or refer to Article 40.4 and then try to argue that this allows you to circumvent the court fees regulations. That would be to drive a "coach and four" through the regulations. 

14.              I have also considered the decision of Humphreys J. in McGreal v. Minister for Housing, Local Government and Heritage of Ireland (No. 2) [2024] IEHC 728.  I agree entirely with what Humphreys J. says in this decision.  In particular, I will refer to a number of paragraphs of this decision. 

15.              At para. 1, Humphreys J. says:-

"The applicant seeks an exemption from stamp duty to file a notice of motion seeking to set aside my previous judgment in these proceedings, on the basis that his motion deals with liberty and thus attracts the exemption related to Article 40.4 of the Constitution.  The question is whether the exemption applies."

16.              At para. 6, Humphreys J., having made a number of remarks about these matters, says that:-

"Correctness must be judged by the only standard that matters, whether the argument is one that is accepted by a court.  That doesn't make all of his points bad ones of course.  But the present application is doomed by two pseudo-legal misconceptions:

(i)                 There is no cheat sheet to circumvent the legal system.  Using magic words or adding "Article 40.4" to the top of the page doesn't turn a motion into an application under that provision if it would not otherwise be so.

(ii)              Words  in  law  are  interpreted  in  line  with  judicial  decisions,  not  an  applicant's personal beliefs.  The reference in the fees order to proceedings under Article 40.4 does not include judicial review at all and in particular does not include generalised complaints about liberty in the abstract.  It is about applications made substantively under that provision of the Constitution seeking release from physical detention and quasi-detention."

17.              At para. 31 of his decision Humphreys J. states as follows:-

"The express basis of the present application is that section 5 applies because this is a matter under Article 40.4 of the Constitution.  The basis for that assertion is that personal liberty is a broad concept and that one's liberties are impinged upon by many kinds of restrictions, not just formal detention."

18.              However, at para. 32, Humphreys J. says "However, when the order uses the phrase 'proceedings under Article 40.4 of the Constitution', it is not referring to personal liberty in a broad sense".  He then sets out the provisions of Article 40.4 in full, and he then says at paras. 35, 36, and 37:

"35.     The one thing we can be sure about is that the present judicial review is not such a proceeding.

36.       Therefore art. 5 –which is the only basis of exemption argued here –simply doesn't apply.  The application is based on a misunderstanding.  That isn't to exult in the levying of stamp duty.  It is simply to deal with the application actually made. Nor is it to deny that the applicant is interested in human liberty in the broad sense.  Rather it is to assert that art. 5(a) is not concerned with human liberty in the broad sense.  It is confined to proceedings instituted under Article 40.4.2 to 4

For the sake of completeness I should add that merely referring to Article 40.4 in the title of the proceedings, as this applicant has attempted to do, is legally ineffective.  The application must actually be a proceeding under that section, not merely some other kind of application that wrongly describes itself as such.  The exemption is a matter of substance rather than mere form. If one wanted to be legalistic about it, I could point out that the applicant only referenced Article 40.4.1, which doesn't provide for proceedings as such, and thus doesn't even on its face attract the exemption."

19.              At para. 40, Humphreys J. states:-

"The same type of thing applies here.  In the real world, this case has nothing to do with proceedings seeking the release of the applicant from detention.  It is hard to avoid the conclusion that the throwaway reference to Article 40.4 is only included for the purposes of an unsustainable claim to exemption from fees."

20.              I would also note that Humphreys J. in his judgment from paragraphs 41 to 43, referred to ex parte orders which I had made in an application in which Mr. McGreal (the plaintiff in the action, before Humphreys J.) had made before me. I agree with all of the comments and remarks made by Humphreys J. about these ex parte orders made by me.  However, I have reviewed the High Court orders which I made in this matter, which were referred to by Humphreys J. - in particular to the orders which were made by me on Monday, 14th October 2024.

21.              This was an application in which Mr. McGreal wished to bring an intended action against a number of defendants. The defendants which he named in the intended plenary summons were 'Sam (Court Service Staff)', 'Colin (Court Service Staff)', 'Kim Duffy', 'Garda A', 'Garda Sheehan', 'Garda C', 'Jail Garda', 'Garda Sergeant' and 'Commissioner of an Garda Síochána'.  To the best of my recollection, what happened in this case was that Mr. McGreal sought to issue this plenary summons in the Central Office and the Central Office would not accept same until the appropriate court fees were paid.  Mr. McGreal then made an ex parte application before me and argued that these proceedings had the benefit of the exemption under s. 5(a) of SI 492/2014 and that no fees should be payable, because these proceedings were brought under Article 40.4 of the Constitution.

22.              In the plenary summons, which Mr. McGreal intended to issue in respect of this matter, Mr. McGreal pleaded that the defendants, including the Gardaí, had breached his constitutional rights, and, at para. 4 of his plenary summons, he pleaded "[f]alse arrest, false imprisonment and assault" and then that "[t]he defendants engaged in false arrest, wrongful detention and physical assault without lawful basis, constituting breaches of the Non-Fatal Offences Against a Person Act, 1997 specifically section 15, false imprisonment and sections 2 and 3".

23.              At para. 9 of his plenary summons, he pleaded as follows:-

"I was wrongfully detained and deprived of my personal liberty multiple times by the defendants without any lawful cause.  This extended deprivation of my freedom, coupled with the degrading and hostile conditions I was subjected to, represents a profound violation of my rights under Article 40.3 and Article 40.4 of the Irish Constitution, as well as under Articles 3 and 5 of the ECHR and Article 6 of the EU Charter of Fundamental Rights."

24.              At para. 11, he pleaded that "[t]he defendants repeatedly obstructed my lawful efforts to file an affidavit under Article 40.4 of the Constitution of Ireland".

25.              Given that these were the terms of the intended plenary summons, and given that Mr. McGreal intended and wished to issue a plenary summons against members of the Gardaí and the Commissioner of an Garda Síochána, and given that he said he had been unlawfully detained and imprisoned, it was, at the ex parte stage, my view that the intended proceedings did raise an issue as to whether these proceedings were proceedings under Article 40.4 of the Constitution.

26.              In particular, Article 40.4.1° of the Constitution provides that "No citizen shall be deprived of his personal liberty save in accordance with law". In my view, whether Mr. McGreal was right or wrong about that was a matter for another day, but at the ex parte stage, I was of the view that he had raised a prima facie argument that his intended proceedings raised an issue pursuant to Article 40.4 and, therefore, did not attract fees at this point in time.

27.              In those circumstances, I made an order (and it appears on the face of the order) that:

"And it appearing that the intended proceedings raise an issue pursuant to Article 40.4 of the Constitution, and do not attract fees at this point in time (subject to the right of the intended defence to reply at a later stage)"

28.              I then indicated that Mr. McGreal could issue his plenary summons in those proceedings, without the payment of the stamp duty.

29.              I think that order was also replicated in related proceedings, which were Patrick McGreal (intended plaintiff) v. Bridin Concannon and Maria Browne.  It was indicated to me that those proceedings were linked and that they arose one out of the other, although it is not clear to me why this was so.  But in any event, I formed the view, at the ex parte stage, that the intended plenary summons, on the face of it, were proceedings under Article 40.4 of the Constitution and, therefore, no fees were payable in respect of the plenary summons under s. 5(a) of S.I. 2014/492.

Conclusion

30.              I would, therefore, conclude, on the facts of this case, and in respect of this application, that Mr. Murphy's intended action is not an action in any way which can be classified as 'proceedings under Article 40.4 of the Constitution'.  Therefore, the exemption under s. 5(a) of the S.I. 2014/492 does not apply, and therefore, the court fees are due. If Mr. Murphy wishes to proceed with these proceedings, then he will have to pay the court fees.