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1. In these proceedings the Applicant has challenged the subordinate legislation by which fees are imposed on particular transactions involved in proceedings in the High Court.

2. The Courts of Justice Act, 1936, s.65 (1) provides as follows:-

3. Orders have been made pursuant to that section from time to time but more particularly by an order entitled “Supreme Court and High Court (Fees) Order 1989 (S.I. No. 341 of 1989)” (hereinafter referred to as “the Fees Order”). It provided (among other things) as follows:-

4. It appears from the Schedule to the Fees Order that a stamp duty of £7:00 is payable on the filing of an affidavit and a duty of £10:00 on the filing of a notice of motion. Attention was also drawn to the fact that a fee of £50:00 is payable on the filing of a notice of motion of appeal to the Supreme Court.

5. Peter Murphy, the Applicant/ Appellant herein, has challenged the imposition of those duties payable in respect of the filing of an affidavit or a notice of motion in the circumstances which are set out in a statement dated the 2nd day of September, 1999, made by Mr Murphy for the purpose of grounding an application to the High Court for judicial review. He explained that on the 29th May, 1997, he was confined to a cell at Kilmainham Courthouse against his will and without lawful justification. He instituted High Court proceedings (1998 No 2818p) on the 3rd day of March, 1998, in respect of that alleged wrongdoing. The defendants named in those proceedings are Judge Gillian M Hussey and Garda Stephen Cunningham.. The plaintiff’s claim was for damages as against both of the defendants for unlawful imprisonment for nearly six hours on the 29th day of May, 1997.

6. On the 11th March, 1999, the Chief State Solicitor entered an appearance on behalf of both of the defendants.

7. A statement of claim appears to have been delivered on the 30th March, 1998, and an amended statement of claim on the 6th May, 1998. On the 25th June, 1998, a notice for particulars was served on behalf of the defendants. Although a defence was not delivered no application for judgment in default was brought by Mr Murphy. He claims that the stamp duties payable on the notice of motion and grounding affidavits precluded him from adopting that course.

8. Instead he sought, and obtained, on the 4th October, 1999, leave to apply by way of judicial review for a declaration that Sections 8 and 10 of Part 3 of the Fees Order (the fees on notices of motion and affidavits) were unconstitutional “because the applicant is an impoverished person the imposition of court fees impedes him from proceeding with the case ”. In the statement grounding the application for judicial review and subsequent affidavits Mr Murphy has stated that “on occasion” he is impecunious and that his sole income is a social welfare payment from the Department of Social Welfare amounting £67:50p per week. In addition he did say that he won £5,000 - apparently in the year 1998 - on the Lotto. In his affidavit sworn on the 20th June, 2000, he summarised his position in the following terms:-

9. The application for judicial review was heard by Mr Justice Butler on the 19th day of May, 2000, when he declined to grant the relief sought. The essence of the decision by Butler J is contained in the final paragraph of his report which is expressed in the following terms:-

10. Mr Murphy is certainly correct in asserting that there is a right to have recourse to the High Court to defend and vindicate a legal right and this is one of the personal rights of the citizen included, but not enumerated, in the general guarantee provided by Article 40.3 of Bunreacht na hEireann. That such a right exists was established by the decision of the High Court in MacAuley .v. The Minister for Posts & Telegraphs [1966] IR (p 345). The State may not preclude the right of access to the Courts. More than that, the State must vindicate and respect the right of the citizen to have access to the Courts.

11. The constitutionality of imposing duties or fees on civil litigation was considered by O’Hanlon J in MacGairbhith .v. Attorney General [1991] IR 412. The plaintiff’s claim in that case was expressed bluntly in the statement of claim in the following terms:-

12. In commenting generally on that assertion the learned Judge said (at page 431):-

13. Unfortunately Mr Justice O’Hanlon felt unable to express any view on the constitutionality of the impugned duties. He explained the problem which he faced in the following terms:-

14. In the course of his judgment O’Hanlon J referred to the decision of the Supreme Court of the United States in Boddie .v. Connecticut [1971] 401 US 371. That case is, at least superficially, very much in point. The appellants were welfare recipients residing in Connecticut who challenged the constitutionality of certain statutes of that state which imposed the payment of court fees on divorce proceedings. Eight of the nine judges upheld that contention. Some based their decision on the application of the principle of “due process” others on the grounds that the imposition of duties offended the “equal protection clause” by discriminating against the indigent. Of the majority, six were unanimous in concluding that divorce was a special situation in as much as that change of status required a judicial decision. The majority decision was severely criticised in the dissenting judgment of Mr Justice Black. In his view due process required that criminal trials should not be hampered or handicapped by the imposition of duties. In that conclusion he was following the decision of the US Supreme Court in Cohen .v. Beneficial Loan Corp 337 US 541 [1949]. That decision did not extend to civil proceedings and Mr Justice Black was firmly opposed to its being extended, even on an exceptional basis, to matrimonial proceedings as the majority had decided. His views differed even more radically from those of Mr Justice Brennan who would have extended the exception far beyond the realms of matrimonial law. In the result, however, it would appear that the constitution of the United States does not prohibit the imposition of duties or charges which might have the effect of inhibiting civil litigation other than proceedings for divorce or alterations in matrimonial status requiring a judicial determination.

15. Whether this is a correct analysis of US constitutional law or not, I am confident that our Constitution does not imply any such general prohibition. The decision (again of O’Hanlon J) in Salih .v. General Accident [1987] IR 628 recognises that the obstacle to access which an order for security for costs may cause is not unconstitutional. All public services must be funded by monies derived from the public either by general taxation or by a charge related to the service rendered or by some combination of both of them.

16. The affidavit sworn by Mr Sean Murphy, an assistant principal officer in the Department of Justice, Equality and Law Reform, explains that in the year ended the 31st December, 1998, a sum of approximately £11 million was collected in court fees where a sum of £34 million (over and above judicial salaries) was expended on court staff and general operating expenses of the court system. The wide range of facilities provided by the judicial system provided by that expenditure is availed of to a very appreciable extent by insurance companies, financial institutions and multinational organisations as a means of resolving their commercial disputes. There is nothing in the Constitution which requires that these services should be provided to all persons free of charge. Indeed the concept of the entire cost of the judicial system being borne out of tax, including tax imposed on modest incomes, to exonerate substantial commercial organisations would seem absurd in principle and offensive in practice. I am satisfied that the power conferred by the Act of 1936 to impose charges (provided that they are reasonable) for and in respect of court services - and there is a constitutional presumption that unreasonable charges would not be imposed - is not unconstitutional.

17. To determine whether the charges fixed by the Fees Order or any other order replacing it are unreasonable would require an analysis of the factors identified by Mr Justice O’Hanlon in the MacGairbhith case and many others. Certainly regard should be had to the nature of the charges as well as the amount thereof. It is noteworthy that the Fees Order (in paragraph 7) expressly exempts from court fees motions, affidavits and other documents filed in connection with habeas corpus proceedings, extradition matter, bail and applications for certiorari, mandamus, prohibition or quo warranto in respect of a criminal case and that paragraph 8 exempts all proceedings in family, adoption and allied matters. The fixed fees imposed by the Fees Order range from £3 to £60 and the particular fees challenged by the Plaintiff herein were £10 and £7 respectively. Nobody would dismiss these fees - even the lesser ones of them - as being irrelevant and it is clear that they could present a significant burden to a person whose only income was derived from social welfare payments. However, these obligations must be seen also in the light of the obligation on the State to provide legal aid or comparable facilities in certain circumstances. In criminal cases not merely is a system of legal aid provided but this Court has held in the State (Healy) .v. Donoghue [1976] IR 325 that a poor person facing a serious criminal charge has a constitutional right to such assistance. Again the system of civil legal aid was a response to the judgment of the European Court of Human Rights in Airey .v. Ireland 2 EHRR 305 which held that the failure to provide legal aid for the legal proceedings necessary to obtain a judicial separation was a violation of the European Convention on Human Rights. Again, there are a variety of proceedings such as habeas corpus, certiorari, mandamus and prohibition which, insofar as they relate to the liberty of the subject, may be financed out of funds provided through the Attorney General at the request of the Court.

18. It would be impossible to consider the impact of particular court fees without knowing the full circumstances of the intended plaintiff and the options or facilities available to him but what can be said in the present case is that the two charges of which Mr Murphy complains and amounting in total to £17 do not appear to have presented a significant obstacle to his engaging in litigation having regard to the other proceedings which he has pursued and in particular the appeal herein. One would not have thought there should be any significant difficulty in raising a sum of £17 to pursue the limited objective of applying for judgment in default to the stage when the Defendants were several months in arrears with their pleadings.

19. Furthermore, the evidence has not negatived the availability to him of civil legal aid to pursue his claim.

20. Whilst the Appellant made his argument with clarity and commendable restraint I am satisfied that his argument and the facts on which he relied fell well short of establishing that the Fees Order was unconstitutional or ultra vires the powers of the Minister by whom the same was made. Indeed I am not satisfied that Mr Murphy established the necessary locus standi to maintain these proceedings. I would dismiss the appeal.