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  • said he was insisting on delivery of the statement of claim within seven days By a further letter of the 28th January 2002 the defendant s solicitor threatened a further motion On the 11th February 2002 the plaintiff s solicitor assured him that you will get a statement of claim from us shortly 6 By letter of the 12th February the defendant again demanded a statement of claim and threatened a motion On the 29th April he wrote again pointing that he had no response to the previous letter and that he was now issuing a further motion On the 27th June the Master of the High Court dismissed the plaintiff s claim for want of prosecution with costs to the defendant 7 The plaintiff appealed this order to the High Court and it was affirmed on the 13th January 2003 The plaintiff appealed again to this Court In October 2003 the Books of Appeal appear to have been outstanding because the defendant put the plaintiff on notice that he would bring a motion to dismiss his appeal for want of prosecution unless the plaintiff made efforts to have the appeal dealt with The appeal was subsequently certified and listed for hearing on the 29th October 2004 8 It is fair to say that the plaintiff has been dilatory in a high degree Indeed it was not contested that he had been guilty of inordinate delay and it was not seriously contested that the delay was inexcusable It was however urged that the delay was not gross by the standards of actual practice in these matters and that in any event the interests of justice required that the matter proceed Mr Clarke S C also relied heavily on an assertion that the case will proceed on an assessment only basis he derived this information from the fact that the owner of the vehicle had already been paid his damages by or on behalf of the defendant Mr Clarke s assertions in this regard were not contradicted 9 Mr Clarke relied principally on the judgment of the High Court in Rainsford v Limerick Corporation 1995 2 ILRM 561 In particular it was submitted on the authority of this case that even assuming or conceding the plaintiff s delay to be both inordinate and inexcusable the Court must still proceed to exercise a discretion as to whether on the facts the balance of justice is in favour or against the continuance of the case In this regard the gravity of the claim and the consequence of dismissal for the claimant is a material consideration Also relevant according to the judgment of Finlay P as he then was is the extent of the litigant s personal as opposed to vicarious blameworthiness for the delay 10 Finlay P eventually exercised his discretion in favour of the plaintiff in Rainsford on the basis that the balance of justice is in favour of permitting this action to proceed and that the chances of a major injustice

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  • it is perfectly clear that there is no allegation whatsoever of fraud deceit or any kind of deliberate misconduct in either of those paragraphs I would sum up the position this way It would seem to me that from the beginning the Statement of Claim was alleging deliberate misbehaviour on the part of the first named respondent but was merely alleging breaches of duty on the part of the second named respondent In both the Plenary Summons and the prayer in the Statement of Claim however the claims for deceit fraud and or fraudulent breach of trust and fraudulent misrepresentation are made against both respondents As I have already observed that is irrelevant No such case has actually been pleaded against the second named respondent in the Statement of Claim Proposed amendments as against second named respondent I now turn to the proposed amendments These proposed amendments if allowed would radically alter the case made against the second named respondent There is no doubt that under the proposed amended Statement of Claim serious allegations of fraud and deliberate misconduct are alleged against the second named respondent which is a well known company carrying on the business of trustee of pension schemes The allegations against the first named respondent in the amended paragraph 8 are alleged in that paragraph against the second named respondent also The proposed amendment to paragraph 10 which expressly alleges knowledge of the untruth of the representations by both respondents The allegation of wrongful concealment contained in paragraph 11 is likewise now by way of amendment made against both respondents The whole of paragraph 12A being the new paragraph in the amended Statement of Claim is prefaced by the allegation that the first named respondent its servants or agents were at all material times acting in concert with the second named respondent In addition to claims of fraud fraudulent breach of trust fraudulent misrepresentation deceit and dishonesty there is a claim of conspiracy which must necessarily involve both the respondents Although paragraph 13 in its main body does not bring in the second named respondent it does so in the particulars of wrongful and dishonest misconduct In paragraph 16 it is expressly pleaded that the second named respondent its servants or agents were also guilty of fraud and or fraudulent breach of trust and or fraudulent misrepresentation and or deceit and or conspiracy and party and or privy to dishonest concealment by the first named respondent Consideration of these proposed drastic amendments as far as the second named respondent is concerned must take into account certain matters which were contained in replies to notices for particulars arising out of the original Statement of Claim Possibly unwisely but presumably motivated by the contents of the general endorsement of claim on the Plenary Summons and the prayer in the Statement of Claim the following matter was raised at paragraph 10 of the first notice of particulars served by the second named respondent arising out of the Statement of Claim This read as follows Arising from paragraph 14 of the Statement of Claim please confirm that no allegation of deliberate concealment is made against IPT its servants or agents That elicited the following reply No so confirmed The plaintiff claims that the information was concealed from the plaintiff by the first named respondent The servants or agents of the first named respondent were acting as servants or agents of the second named respondent The second named respondent had actual or constructive notice that such information was being concealed by the first named respondent from the plaintiff and failed to intervene Please also see Statement of Claim paragraphs 15 and 16 Understandably the solicitors for the second named respondent raised the matter again in a notice for further and better particulars They wrote the following 10 Arising from the reply given i Please give full and detailed particulars of the allegation that IPT had actual notice that information was being concealed from the plaintiff by the first respondent and set out the material facts but not the evidence thereof on which the plaintiff relies in alleging that IPT had such notice ii Please give full and detailed particulars of the allegation that IPT had constructive notice that information was being concealed from the plaintiff by the first respondent and set out the material facts but not the evidence thereof on which the plaintiff relies in alleging that IPT had such notice iii Please give full and detailed particulars of IPT s alleged failure to intervene In the reply to that further notice for particulars a hopelessly unsatisfactory answer was given by the solicitors for the appellant It reads as follows 10 i This is not an appropriate matter for particulars This is a matter for evidence of the hearing of the action ii This is not an appropriate matter for particulars This is a matter for evidence of the hearing of the action iii This is not an appropriate matter for particulars This is a matter for evidence of the hearing of the action In my opinion the second named respondent was perfectly entitled to be told the basic facts on which the allegation of deliberate misconduct was being based I draw the inference and I believe that I am entitled to draw the inference from this correspondence that in so far as there was an allegation made of deliberate concealment against the second named respondent which it must be remembered was really only made in a reply to a notice for particulars and not in the Statement of Claim it was nothing more than a piece of legalistic pleading It is not alleged that there was any representation made by an employee of the second named respondent All that background in my opinion is highly relevant when considering the application to amend the Statement of Claim in so far as it concerns the second named respondent The law Although there is a body of case law which has been helpfully referred to in the written submissions of the three parties the most important legal source is the relevant rule in the Rules of the Superior Courts in that in many respects its terms are crystal clear The relevant rule is Rule 1 of O 28 and it reads as follows The Court may at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties While undoubtedly there is a discretion in the court as to whether to make the order or not and other factors may come into play the primary consideration of the court must be whether the amendments are necessary for the purpose of determining the real questions of controversy in the litigation I am in agreement with the submissions of counsel for the appellant that the learned High Court judge did not adequately address that question but was much more concerned with the procedural conduct of the appellant The priority which must be given to that issue was clearly restated by the Supreme Court in O Leary v Minister for Transport Energy and Communications 2001 1ILRM 132 McGuinness J sat with Denham and Barron JJ The following passage at p 143 of the report clearly indicates the approach of McGuinness J and of the court I accept that there has been undesirable delay in the prosecution of these proceedings As Mr Gallagher submitted the action was instituted very late in the day and having been instituted late has been progressed by the applicant at an extremely relaxed pace Indeed the amount of delay and the repeated delay is the strongest argument against permitting the inclusion of a new and distinct claim of conspiracy However this is an application under Order 28 Rule 1 and the delays in the instant case are not outside the well established parameters of that rule The operation of the rule was considered by the learned Kinlen J in Bell v Pederson 1995 3 IR 511 1996 1 ILRM 290 In that case an application to amend the pleadings in a substantial and important way was made on the morning of the trial The learned Kinlen J allowed the respondents to amend their defence in the manner sought In his judgment he approved the principles laid down by Keane J in Krops v The Irish Forestry Board Limited and referred also to the dicta of Lynch J in Director of Public Prosecutions v Corbett ILRM 674 at p 678 The day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party While courts have a discretion as to amendment that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendments should be made If there might be prejudice which could be overcome by an adjournment then the amendments should be made and an adjournment also granted to overcome the possible prejudice and if the amendments might put the other party to extra expense that can be regulated by a suitable order as to costs or by the imposition of a condition that the amending party shall indemnity the other party against such expenses Kinlen J adopted this reasoning as part of the ratio of his judgment It appears to me also to be an application of principle which is in accordance with justice Even if I was not bound to do so I would have no hesitation in following that judgment I entirely agree with the approach to the interpretation of the rule which it represents In some of the High Court decisions cited in the submissions there has been an overemphasis on an obligation to give good reason for having to amend the pleadings To a large extent these decisions seem to derive directly or indirectly from an unreported judgment of Barron J delivered in the High Court on the 21st December 1992 in the case of Shepperton Investment Company Limited v Concast 1975 Limited The material passage in the judgment reads as follows Ultimately however the question is where does the balance of justice lie Clearly if the plaintiff has a good case in respect of its amended claim it is facing a serious injustice if it is not allowed to make it Nevertheless before such an amendment should be allowed full disclosure should be made as to the circumstances in which the claim comes to be made and as to why it has not been made sooner No such effort has been made here in circumstances where the technical evidence apparently available to the plaintiff appears not to support the amendment Such considerations weaken the case for the plaintiff This passage must be read in the context of views expressed by the learned judge earlier in his judgment The reference to full disclosure as to the circumstances in which the claim comes to be made would appear to me to be a reference to the fact heavily criticised in the judgment that the plaintiff had not given proper particulars in replies to a notice for particulars and in particular had relied on the answer this is a matter of evidence Of course this aspect of the judgment is relevant to the claim to amend the Statement of Claim as against the second named respondent which I will be dealing with in due course What has also influenced the High Court is the decision of this court in McFadden v Dundalk and Dowdallshill Coursing Club Limited unreported judgment of Finlay C J 22nd April 1994 in which the court upheld the judgment of the High Court Johnson J in refusing an amendment by the respondents of a defence to plead that the plaintiff was a member of the Club on an application made some three days before the intended date of trial on the basis that no information was given in the affidavit as to why the matter had not been adverted to before that point in time and why the application had not been brought at an earlier point in time The McFadden judgment was delivered ex tempore as a ruling of the court The proceedings had been commenced by a summons in December 1990 and were brought forward for trial The case came on for trial in Dundalk was listed and ready for hearing in a session prior to December 1993 but though intended to be taken up by reason of the amount of work on that day the case fell out of the list and was adjourned to be tried in the December session At that stage the position of the case in the list in Dundalk was going to give it a secure chance of getting a hearing The December sittings in Dundalk commenced on the 9th December and an application was made to the High Court on the 6th December by the respondents to amend their defence to raise the plea that the plaintiff was a member of the Club and that therefore he could not sue as a member of an unincorporated body This is what Finlay C J had to say This is a preliminary point which the court is quite satisfied is a purely technical point particularly on the facts of this case At least it is quite clearly without any merits though it may be a good legal point The court does not express any views about that The question then is whether the court should exercise a discretion to permit the respondents to amend their defence To raise a purely technical point at this stage the learned trial judge of the High Court decided that it was too late This court is of the same view No explanation was given on any affidavit as to why the matter was not adverted to or why it was not in the original defence or why there was not any application made before the time when it was It is clear from that passage and from later parts of the ex tempore ruling that the court was understandably taking the view that having regard to the late state at which the proceedings were at and its listing history it would on the face of it be quite wrong to permit the amendment But as I interpret the judgment the references to an affidavit and to reasons was a reference to the obvious fact that there could be exceptional reasons for allowing an amendment even at that late stage in which case those exceptional reasons would have to be fully set out in evidence before the court and that was not done I do not think that McFadden can be cited as an authority for any general principle as to what the contents of an affidavit have to be in an application to be allowed deliver an amended pleading Shepperton and McFadden were both cited by and relied on by Flood J in Palamos Properties Limited v Brooks 1996 3 IR 597 With reference to the two cases Flood J said the following at p 605 In my opinion these decisions amount to this That within the facts underlying the claim before the courts there must be such evidence from which an inference can reasonably be drawn as to why the plea which is sought to be introduced by way of amendment was not put in the original defence or express evidence given to explain the failure in a manner which renders the omission broadly excusable if not actually justifiable For the kind of reasons which I have indicated I would express doubt that those cases support such a broad proposition as enunciated by Flood J Both cases were special to their own peculiar facts There are however some other pertinent and useful quotations from English cases in the judgment of Flood J He first cites the well known case of Cropper v Smyth 1884 26 Ch D 700 at pp 710 711 where Bowen L J said the following It is a well established principle that the object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights I know of no kind of error or mistake which if not fraudulent or intended to overreach the court ought not to correct if it can be done without injustice to the other parties Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace It seems to me that as soon as it appears that the way in which the party has framed his case will not lead to a decision on the real matter in controversy it is as much a matter of right on his part to have it corrected if it can be done without injustice as anything else in the case is a matter of right Flood J also cites Woolf L J in Bower v Maxwell unreported judgment Court of Appeal England 8th May 1989 The mere fact that where delay has been occasioned by a party who seeks to obtain leave to amend his pleadings to introduce new issues that that delay may be capable of being compensated in money is not conclusive of the question whether the amendment should or should not be permitted The respondent s conduct must be such that it can be regarded as justifiable or at any rate excusable If the respondent s is not justifiable or excusable then that factor has to be taken into consideration as

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  • a difficult area for assessment by doctors As a consequence of the type of injury it is also a difficult area for legal assessment However just because difficulties arise does not mean that they cannot be addressed It means that a court will take care in considering the issues especially when it is pleaded that there is no credibility there is exaggeration or in other ways the character of a plaintiff is under review The trial judge in this case being very experienced in the area brought to the case time and analysis The case was before the High Court for eight days The learned High Court judge heard evidence from the plaintiff including cross examination The learned High Court judge saw the plaintiff s demeanour when giving evidence and when sitting in court during the hearing Critical evidence was given as to the plaintiff s future pain and suffering and consequential loss which was contradictory On this pivotal evidence the High Court held with the evidence offered on behalf of the appellant stating Insofar as the plaintiff s physical injuries are concerned it appears to me that the essential difference between Mr Bough and Professor Clery and Mr Sheehan is one of emphasis and prognosis but insofar as there is conflict on the evidence I prefer the views as expressed by Mr Sheehan and Professor Clery I take the view that Mr Bough s future prognosis is much too pessimistic and I prefer the view of Mr Sheehan that in the future the plaintiff s situation could very well ease up and while he may be left with some degree of intermittent parasthesia this could be relatively well controlled Thus the learned trial judge decided that the evidence proffered on behalf of the plaintiff was too pessimistic that in the future the plaintiff s situation could well ease up and that while he may be left with some degree of parasthesia this could be relatively well controlled There is no question of a determination that the plaintiff was lying or exaggerating The learned trial judge finds a degree of injury and loss into the future The judge came to an overall view on the evidence as follows The overall view which I take on the evidence adduced before me is that the plaintiff suffered a relatively mild whiplash injury superimposed on pre existing degenerative changes and that he suffered a degree of nerve root irritation He also suffered a post traumatic stress reaction to the circumstances of the accident from which he recovered within a few months and he is left with a mild degree of depression most of which is related to his perceived inability to carry out his duties as a firefighter which situation clearly was not helped by his being retired on grounds of ill health in December 2001 A combination of the physical and psychological injuries appear to have brought about a situation where the plaintiff had difficulty in carrying out his full duties at work and he received extensive medical treatment and while there is a difference of opinion as regards the nature of the treatment afforded to the plaintiff I take the view that the treatment as performed by Mr Bough for the plaintiff and the treatment as advised by him was done so by him using his best professional judgement In this regard I prefer the views as expressed by Professor Clery and Mr Sheehan and in all the circumstances I take the view that any future treatment will be minimal and insofar as a claim is made for future treatment I propose to build in a small allowance for this treatment into the figure for future general damages The basis upon which I do so is that the plaintiff may require some level of physiotherapy in the immediate future and analgesia from time to time My overall conclusion is that this plaintiff suffered a mild whiplash injury and minor psychological trauma I appreciate that the plaintiff is certified as 40 disabled by the Department of Social Welfare but I take the view that I have to decide this case on the evidence adduced before me I take the view that Mr Bough has been unduly pessimistic as regards the plaintiff s future and my view on the evidence is that the plaintiff may be left with some intermittent discomfort in his left arm but this condition could very well ease up In these circumstances he awarded the plaintiff 35 000 general damages to date and 40 000 general damage into the future which included a small allowance for any potential future treatment and medication to a total of 75 000 The learned trial judge also awarded 21 007 72 for miscellaneous medical hospital expenses and loss of earnings being a net of 22 000 The learned trial judge then turned to the post 10th December 2001 situation and said it was very far from straight forward The trial judge recognized the complexities of the case which included the nature of the injuries soft tissue injuries the demanding job of a firefighter the rather remarkable practices as to the employment of firefighters on light duties and the path taken by the plaintiff from March or April 2001 that would lead him to be retired from the fire service The trial judge considered possible alternative motives of the plaintiff He said It may be that he took the view that if he was retired from work he would recover a full loss of earnings into the future together with any loss of pension rights and gratuity entitlements It may be that he felt that he was a burden on his colleagues and he preferred simply not to continue at work However the trial judge decided on balance to accept as a matter of probability that the plaintiff was not fit for the full rigours of everyday firefighting duties and that he could not do very heavy physical activity However he could have remained

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  • habitual residence until the actual return to Canada on 24th February and that until that date the habitual residence of the minor was in this jurisdiction The return to Canada was temporary and for a short period She had been induced to go on the representations both of the applicant and his mother and that she could return and accordingly their daughter had habitual residence in Canada the expression and accordingly does not appear in the transcript of the judgment it appears in any event inconsistent with what went before He then recounted the conflicting evidence regarding the events in Canada between February and April 2004 and says It seems to me that the respondent was depressed and allowed herself to go along with the applicant s plans I also find that she was discouraged from returning to this jurisdiction He then deals with the work history of the parties as follows The evidence in relation to the applicant s work is somewhat sketchy The respondent said that her husband was not at work on the day she left as he had no job He agreed that he had received money from his parents He did work in Ireland as is evidenced by the tax forms in relation to the three weeks immediately before his leaving Ireland on the 24th February 2004 There was no evidence of the applicant having worked in Toronto during the periods he returned there in May August and the period from Late September to November of last year However it appears that he has the support of and the opportunity of working within his family businesses The respondent on the other hand was employed full time at her mother in law s pub before she left for Ireland At that time the applicant said he was working as a manager at a large pub where he lived The respondent was not and is not a Canadian citizen and it would appear was not legally entitled to work Nevertheless while she says that she was the sole breadwinner I find that both had earnings at that material time The learned judge then stated that the further issue to be determined was the habitual residence of the child Again however he appears merely to have recited the respective contentions of the parties At a later point he came to address the issue of habitual residence Having referred to the finding he had already made regarding the intention of the Respondent in returning to Canada in February he said that that was not the relevant issue but that the key issue was habitual residence He then stated that if the place of habitual residence of the father and mother were to remain in Canada it would seem to follow that the child born outside that jurisdiction would require recte acquire the habitual residence of its parents Having stated that the question of habitual residence was one of fact he mentioned that it refers to a person s abode in a particular place or country which has been adopted voluntarily and for a settled purpose as part of the regular of his life for the time being whether of short or long duration and that the habitual residence is that of its married parents and that the voluntary adoption by them for settled purpose is what is relevant to the determination of the Court These statements of principle were followed by the following comment on the facts The evidence given in relation to the respondent s visit was that it was for a specific purpose and duration of some two weeks Even if there had been some difficulties in the relationship which lead the respondent to wish to determine that relationship her stay in Ireland was involuntary due to her sudden illness His conclusion on the issue of habitual residence appears in the following passage 8 4 It does not seem to me that the action of the applicant in giving up the lease of the apartment rather than sub letting which he claims nor the bringing to this jurisdiction of personal effects of the parties though leaving some of these in storage constitutes the adoption for a settled purpose as part of the regular order of his life at the time being of habitual residence in this jurisdiction Even if having regard to the length of time and work undertaken by the applicant in this jurisdiction that could constitute some degree of settled purpose for a short duration the acquiescence by the respondent of an eventual return in February 2004 would seem more compelling 8 5 It was not until the eve of the applicant s departure according to the evidence of the respondent that he was informed of her reluctance to return and agreement to do so for a temporary though undetermined period I can quite understand her position at the time given her allegations of violence corroborated by the evidence of her family in relation to the applicant s temper and the unsavoury aspects of the drug raid on their house that the respondent believed the relationship to be at an end Indeed the institution by the applicant of divorce proceedings in Ontario shortly after his return and indeed the unorthodox reference to affidavits sworn in June 2004 in relation thereto seem further to corroborate the unhappy family differences this does not affect the determination of the habitual residence of the child Later on the same page he said It does not appear to me that habitual residence can be lost where the parties left Canada where there was no settled intention by the parties to remain in Ireland The Appeal Mr Colman Fitzgerald Senior Counsel presenting the appeal on behalf of the Respondent strictly limited his argument to a challenge to the finding of habitual residence He submitted that the learned trial judge was mistaken in his approach to this issue He submitted that a child cannot be habitually resident in a country where he is not then situate and has never been He also criticized the findings of the learned trial judge generally Mr Gerard Durcan Senior Counsel for the Respondent fully supported the High Court decision laying particular emphasis on the notion referred to in the case law of the settled purpose adopted voluntarily as part of their regular order of life of married parents These matters will appear more clearly from my later discussion of the case law The Applicable Law Section 6 of the Child Abduction and Enforcement of Custody Orders act 1991 provides that the Hague Convention is to have the force of law in the State The High Court has jurisdiction to make such orders as are provided for by the Convention The principal purpose of the Convention as stated in its opening recital is to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence as well as to secure protection for rights of access Article 1 states The objects of the present Convention are a to secure the prompt return of children wrongfully removed to or retained in any Contracting State and b to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States For the purposes of applications such as that made in the present case the key provision is found in Article 3 The removal or the retention of a child is to be considered wrongful where a it is in breach of rights of custody attributed to a person an institution or any other body either jointly or alone under the law of the State in which the child was habitually resident immediately before the removal or retention and b at the time of removal or retention those rights were actually exercised either jointly or alone or would have been so exercised but for the removal or retention The scope of application of the Convention is stated in Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights The Convention shall cease to apply when the child attains the age of 16 years In her judgment in In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991 and in the matter of C M a minor C M and O M v Delegación Provincial de Malaga Consejeria de Trabajoe y Asuntos Sociales Junta de Andalucia and others 1999 2 I R 363 McGuinnness J described the effect of these provisions as follows at page 374 Again in the definition contained in art 3 the removal or retention is wrongful if it is in breach of rights of custody under the law of the state of habitual residence of the child and if those rights of custody were being actually exercised at the time of the removal or retention or would have been so exercised were it not for the removal or retention For this Court therefore to make the declaration sought by the plaintiffs and the resulting order that the child be returned to Ireland it must first be established that the first plaintiff was habitually resident in this jurisdiction and that the second plaintiff was actually exercising rights of custody or would have been exercising those rights but for a wrongful removal or retention In the present case therefore where it is alleged that the child was wrongfully removed from Canada in April 2004 the Applicant must prove the burden of proof being on him that the child was immediately prior to that date habitually resident in Canada No issue has arisen on the appeal concerning the Applicant s rights of custody The Court should endeavour as far as possible to interpret the Hague Convention harmoniously with the interpretation adopted by the courts of other contracting states In practice that means that we should try to follow those decisions The Convention is an international agreement designed to resolve situations of personal conflict and the principle of comity and mutual trust between jurisdictions is of prime importance Against this it has to be recalled that by universal accord the issue of habitual residence is essentially one of fact To quote again from the judgment of McGuinness J in the C M case at page 381 Having considered the various authorities opened to me by counsel it seems to me to be settled law in both England and Ireland that habitual residence is not a term of art but a matter of fact to be decided on the evidence in this particular case It is generally accepted that where a child is residing in the lawful custody of its parent in the instant case the mother its habitual residence will be that of the parent However the habitual residence of the child is not governed by the same rigid rules of dependency as apply under the law of domicile and the actual facts of the case must always be taken into account Finally a person whether a child or an adult must for at least some reasonable period of time be actually present in a country before he or she can be held to be habitually resident there This passage subject to one caveat seems to me to state correctly the approach that a court should adopt to assessing the issue of habitual residence The last sentence seems however to state too broad a proposition and I will return to it Obviously it could have serious implications for the present case for the following reason The learned trial judge found that the Respondent had indicated on 23rd February 2004 that she would not go back to Canada and that some assurances had been given by the applicant or his mother or both that she could return with the minor to Ireland Based on this it is difficult to see how the child acquired habitual residence in Canada in February if she was not already habitually resident there Up to that point however she had never been physically present in Canada Hence it is necessary to reconsider the broad proposition suggested by the last sentence in the quoted passage from the judgment of McGuinness J What is undoubted is that habitual residence is not a legal term of art McGuinness J found support for her approach in the words of Lord Brandon in Re J A Minor Abduction 1990 2 AC 562 The first point is that the expression habitually resident as used in article 3 of the Convention is nowhere defined It follows I think that the expression is not to be treated as a term of art with some special meaning but is rather to be understood according to the ordinary and natural meaning of the two words which it contains The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case The fourth point is that where a child of J s age is in the sole lawful custody of the mother his situation with regard to habitual residence will necessarily be the same as hers The Convention deliberately left the notion of habitual residence undefined The courts of the Contracting States have to be free to apply it to the facts having considered all the circumstances of the case Human situations are infinitely variable Habitual residence will be perfectly obvious in the great majority of cases It is an obvious fact that a new born child is incapable of making its own choices as to residence or anything else What the courts have to look at is the situation of the parents and their choices Where the child has for a substantial period been resident in one country with both its parents while they are in a stable relationship particularly if they are of the same nationality the answer will usually be fairly obvious This is the normal state of affairs described in a passage from a judgment in one English case which has been widely quoted cited in the High Court judgment and relied on by the Applicant Waite J in Re B 1993 1 FLR 993 at page 995 stated 1 The habitual residence of young children of parents who are living together is the same as the habitual residence of the parents of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court 2 Habitual residence is a term referring when it is applied in the context of married parents living together to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration 3 All that the law requires for a settled purpose is that the parents shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled 4 Although habitual residence can be lost in a single day for example upon departure from the initial abode with no intention of returning the assumption of habitual residence requires an appreciable period of time and a settled intention Logic would suggest that provided the purpose is settled the period of habitation need not be long I turn next to the question of whether a child can for the purposes of the Convention be habitually resident in a country where he or she has never physically been present McGuinness cited respectable authority for a negative answer In Re M Abduction Habitual Residence 1996 1 F L R 887 Sir John Balcombe said Before a person whether a child or an adult can be said to be habitually resident in a country it is clear that he must be resident in that country Of course residence does not necessarily require physical presence at all times In Re A Abduction Habitual Residence 1998 1 F L R 497 Stuart White J cited that passage and went on to say Not only would it offend against common sense to hold that a child of 6 months of age who had never actually resided in Greece was habitually resident there it would also be inconsistent with authority There is however some English authority to the contrary In B v H Habitual Residence 2002 1 FLR 388 Charles J postulated the possible example of the unexpectedly early birth to a married couple who are habitually resident in England during a weekend break in France He asked rhetorically why the baby should not be habitually resident in England at birth rather than at the moment he or she is brought back to England He continued in a passage with which I would agree Given that habitual residence is not defined and is an issue of fact to be determined in all the circumstances of the case by reference to the intentions and actions of the parents to my mind the answer to that question is that there is no compelling reason why the baby should not be habitually resident in England at birth Charles J applied this reasoning to a case where a family of Bangladeshi origin but habitually resident in England travelled for a holiday to Bangladesh with their three children but between the conception and birth of a fourth who was born in Bangladesh The court held that the baby was habitually resident in England This case was followed by Hedley J W B v H Family Division 18th February 2002 I do not say that the place of birth of a child is an irrelevant fact Clearly it will be of

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  • be the meaning which it was intended to have in the 1932 legislation and that meaning must remain the same even when it is incorporated into a later statutory provision The real issue is to determine the intention of the legislature at the time of the passing of the 1932 Act I fully accept the submission on behalf of the Revenue that the definition must be interpreted in the light of the 1932 Act as a whole The Revenue point to the long title to the Act which certainly can provide an aid to interpretation which reads An Act to provide for the regulation and control of the carriage of passengers by road and to confer on certain companies authority to carry passengers and merchandise by road and to make provisions for other matters connected with the matters aforesaid The Revenue submit that the legislature can only regulate and control the carriage of passengers within the State and that the long title therefore clearly indicates that there could be no extra territorial effect intended to be imposed by any provision of the Act They also point to Section 7 of the Act which makes it an offence to carry on a road passenger service other than under and in accordance with a licence which at least by implication must be restricted to a licence to operate within the State They also point to Section 11 which requires inter alia that in considering whether to grant a licence the Minister must have regard to Whether the service in respect of which such application is made is required in the public interest having regard to the passenger road services and other forms of passenger transport available to the public on or in the neighbourhood of the route of the proposed service Finally the Revenue referred to Section 12 of the Act which lists certain conditions which may be attached to a licence It is argued that a number of these conditions would not be appropriate to services operating outside the State as they might conflict with regulatory provisions in force elsewhere I fully accept that it is proper to consider other provisions in the Act as an aid to interpreting the definition of passenger road service However I am not convinced that the provisions referred to by the Revenue have the restrictive effect which is argued for The purpose of looking at the Act as a whole is to try to ascertain the intention of the legislature as expressed within the Act Section 11 3 is particularly relevant in that it shows that a primary concern of the legislature was to provide services which would be in the public interest I accept that this must only refer to the interest of the public within the State but surely it is in the interest of considerable sections of the public to provide a passenger road service to points outside the State In more recent years there have been a considerable number of Irish

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  • temporary district justices That provision was repealed and replaced by section 37 of the Courts and Court Officers Act 1995 so as to confer the power on the President of the District Court In its re enacted form it is as follows 3 1 A judge of the District Court who is permanently assigned to a particular district may with his or her consent from time to time be temporarily assigned by the President of the District Court to another district but such temporary assignment shall be without prejudice to the exercise and performance by him or her of the privileges powers and duties for the time being conferred or imposed on him or her by law in relation to the district to which he or she is permanently assigned 2 A judge of the District Court who is not for the time being permanently assigned to a district may from time to time be assigned by the President of the District Court to any district 3 concerns temporary judges and is not relevant The Facts Section 55 Applications As appears from the section no application under the section is to be made except in pursuance of a direction given by the Minister for Justice Equality and Law Reform in response to a request received by him from the government of a designated country and made on behalf of a court or tribunal exercising criminal jurisdiction in the country in question or a prosecuting authority in that country Emphasis added The United Kingdom is of course a designated country for the purposes of the section The Appellants solicitors wrote in January 2003 to the Chief State Solicitor calling attention to the provisions of the section and requesting copies of such information as was laid before the judge of the District Court in relation to this matter and which led to his formation of an opinion that the conditions of section 55 3 of the Act had been met They also asked for a copy of both the request which the appropriate UK authority submitted to the Minister and the direction which he gave pursuant to it The Chief State Solicitor responded that the Chief Bureau Officer is of the view that it is not appropriate for the Criminal Assets Bureau to get involved in the criminal process which is taking place in the United Kingdom and if you require any documentation you might deal direct with the prosecuting authority in the UK This response ignored even the request for a copy of the sworn information In the event the appellants were able to obtain the latter from the District Court pursuant to that court s rules having written the Chief Clerk of the Dublin Metropolitan District It was only through the Appellants English solicitors that they succeeded in obtaining copies of the letter of request It then transpired that there were two such letters one dated 22nd October and a second dated 14th November addressed by HM Customs and Excise to the Central Authority for Mutual Assistance Ministry of Justice Dublin A letter of 14th November 2002 explained that the second letter replaced the first which had been withdrawn The information grounding the application for the five warrants pursuant to section 55 was sworn by Detective Superintendent E M McLaughlin of the Criminal Assets Bureau the first named Respondent He deposed that the application was being made pursuant to a Letter of Request for International Mutual Assistance received from her Majesty s Customs and Excise Solicitor s Office dated the 22nd October 2002 However at this stage it is accepted that the operative letter was that of 14th November It states in its opening paragraph Her Britannic Majesty s Commissioners of Customs and Excise being a designated prosecuting authority I the undersigned name given Head of Prosecutions Group and Assistant Secretary legal for the purposes of the European Convention on Mutual Legal Assistance 1959 the Strasbourg Convention of the Solicitor s Office for Her Britannic Majesty s Customs and Excise I have the honour to request the assistance of the Competent Legal Authority in Ireland in relation to certain enquiries being conducted for Her Britannic Majesty s Customs and Excise into conspiracy to cheat Her Majesty the Queen and the Public Revenue emphasis added The letter goes on to describe very fully the particular criminal investigation which was taking place in England and the assistance which was required of the Irish authorities However the point debated on the appeal sufficiently appears from the fact underlined in the above quoted paragraph that the Customs and Excise are a designated prosecuting authority Detective Superintendent McLaughlin also produced a direction from the Minister as required by the section and nothing turns on that The original application for Judicial Review of these warrants in May 2003 claimed only that the letter of request dated 22nd October 2002 was no longer extant when the application was made However separate Judicial Review proceedings were commenced early in 2004 relating not to the validity of the search warrants but to the power of the Minister to hand over documents seised to the UK authorities For present purposes it suffices to say that an amendment to that application introduced the new and now crucial ground that the preconditions to section 55 4 had not been complied with because as there was no request from the Government of the United Kingdom for the issue of a warrant the Minister in purporting to give a direction under section 55 4 acted ultra vires Mr James Ridout a solicitor with Customs and Excise swore an affidavit of English law Having referred to a number of English statutes he expressed the view that Her Majesty s Customs and Excise is the department headed by the Commissioners of Customs and Excise It is considered as and treated as a Government Department forming part of the Crown carrying out functions assigned to it by statute This was however disputed also on affidavit by Mr James Lewis Q C He considered the corresponding English statutes giving effect to mutual assistance In his view as a matter of English law HM Customs Excise have no authority to transmit a letter of request direct to the Central Authority for Mutual Assistance of the Ministry for Justice Equality and Law Reform He considered that the transmission of this letter of request was unlawful It should have been sent to the Home Office for direct transmission to the requested state Finnegan P carefully considered the affidavits of foreign law and clearly preferred the view of Mr Lewis He thought that no valid request had been received by the Minister and that accordingly the warrants were bad It was said during the hearing of the appeal that the respondents had effectively accepted that Mr Lewis opinion was correct In their written submissions on their cross appeal the Respondents have accepted that the request was not made in accordance with the internal requirements of English law The Respondents over the objection of the Appellants adopted a different and it was argued new position on the appeal They questioned whether the decision of the learned President to the effect that the request for the warrants was not made in accordance with English law could affect the validity of the warrants They stated that on its face the request was made on behalf of a foreign government that the Irish authorities had no notice actual or constructive that the requirements of English law were not complied with that the Minister had properly received a request and that as a matter of principle the Irish courts should not adjudicate on the validity of the acts of a foreign sovereign government under its own law Any complaint in that respect should be made to the courts of that country In effect the argument was that the High Court should not have gone behind the request to question its validity in English law The Court did not agree that it should preclude itself from considering the admittedly new argument of the Respondents It would be undesirable that this Court uphold an incorrect decision infringing the principle that our courts should not review the internal procedures of another country In reality however the Appellants in responding to the contention that the request was good on its face themselves argued a somewhat different case in this Court They said that the request on its face came from a prosecuting authority and not from a government This became the real issue on the appeal Mr Paul Gardiner Senior Counsel for the Appellants submitted that section 55 distinguishes between a prosecuting authority and a government The jurisdiction of the District Court to make an order issuing a search warrant is dependant on the existence of a direction from the Minister which is in turn dependant on the existence of a request from the government of the requesting country This is clear from the fact that subsection 3 which confers the power to issue the warrant is expressed to be subject to subsection 4 In this case he said the request on its face was made on behalf of a prosecuting authority Mr Gardiner also argued that because of the terms of Statutory Instrument No 41 of 1998 amending the District Court Rules the application could only be made at any sitting of the Court within such Judge s District Judge Anderson s sitting in chambers was not a sitting of the court and he was not sitting in his District except for the case of the Dublin Metropolitan District Thus he did not have the power at such a sitting to issue warrants Mr Edward Comyn Senior Counsel in reply explained that there was concern that the President s decision on English law might have implications for future cases He did not seriously dispute Mr Gardiner s analysis of the section However he submitted that as compared with the procedures under the Extradition Acts the procedure under section 55 was more open and informal There is no requirement that the request be in any particular form or that it be even in writing He submitted that it was for the Minister to decide whether there was a request Accordingly the important thing is the Minister s direction The District Judge should accept that Conclusion on Section 55 Warrants In order to issue a search warrant under the section the District Judge must of curse be satisfied of the two matters prescribed by paragraphs a and b of subsection 3 namely that there are reasonable grounds for believing that an offence has been committed against the law of the foreign country and that there is a corresponding offence in this jurisdiction His power having been so satisfied to issue the warrant is additionally subject to subsection 4 Subsection 4 in its own terms is addressed to the applicant for the warrant It says No application for a warrant shall be made However the interpolation of the reference to subsection 4 in subsection 3 would appear entirely unnecessary unless it were intended that the District Judge was obliged to satisfy himself that the requirements of that subsection had been satisfied Accordingly I am satisfied that the District Judge was obliged to satisfy himself that the requirements of subsection 4 had been met Mr Comyn however submits that it is for the Minister to give a direction and that it is for him alone to decide whether he has received a request which satisfies the provision In this connection I should say firstly that I cannot accept that there is any reality in the contention that such a request would not be made in writing While this may not be expressly required it seems unreal to suggest that it would not be The request has to be made on behalf of one or other body court tribunal prosecuting authority etc in the other country The affidavit of Mr Lewis shows that within the United Kingdom at any rate the request has to be transmitted from the prosecuting authority to the Secretary of State for transmission to the other country There is sufficient formality in these provisions to make it implicit that the request will be in writing Nor can I accept that it is for the Minister and for him alone to be satisfied as to the provenance of the request If that were so words such as appearing to emanate from the government of a country would have been used The words actually used are received by him from a government This is a matter of objective fact capable of being determined objectively For the reasons already given I believe it is clear that this is a matter which falls within the purview of the District Judge I do not mean to suggest that he any more than the Minister should go behind the terms of a letter containing a request The sworn information will refer to the Minister s direction and to the request The Judge is certainly entitled to accept that a direction given by the Minister on the basis of a request which he says expressly or impliedly emanates from the government of a designated country is properly based on such a request Here however the problem is that as Mr Gardiner has urged the request actually produced does not even purport to emanate from the government of the United Kingdom or from any Minister of that government It expressly states that it comes from a prosecuting authority The District Judge is not entitled to close his eyes to the fact that this is one of the bodies on whose behalf the government is entitled to transmit a request It is in that sense clear that on its face the request was not made in accordance with the provisions of subsection 4 Since subsection 4 had not been complied with the District Judge could not issue warrants even if satisfied of the matters mentioned in subsection 3 paragraphs a and b I should add that I would not accept Mr Gardiner s submission based on S I No 41 I accept Mr Comyn s submission that the provision in question applies only to the applications on notice pursuant to section 38 of the Act of 1994 which are mentioned in that S I It would as he says be surprising if applications for the issue of search warrants often a matter of great urgency had to be made at ordinary public sittings of the court Nonetheless I am satisfied that the cross appeal should be dismissed and the order of the learned President quashing the warrants issued pursuant to section 55 affirmed I cannot refrain from adding that I deplore the refusal of the Respondents to provide to the Appellants copies of the essential documents which had been used to ground the applications for the warrants The reply that that it was not appropriate for the Criminal Assets Bureau to get involved in the criminal process which is taking place in the United Kingdom was at best disingenuous The request made by the solicitors for the Appellants was a reasonable one It related to the materials used for the purposes of a proceeding in an Irish court It was reprehensible to refuse it and indefensible to advance a justification which was patently false The foregoing is sufficient to dispose of any issue of the validity of the section 55 warrants However it is also necessary to consider the principal appeal of the Appellants In fact the arguments advanced concerning the validity of the section 14 warrants are equally applicable to those issued pursuant to section 55 Arguments on the Section 14 Warrants The learned President identified the issue affecting the jurisdiction of the District Court to issue the section 14 warrants as follows Had Judge Anderson jurisdiction to issue the warrants a The District Judge being assigned to more than one district or b The District Judge issuing the Search Warrants while not physically present within the relevant District except in the case of the Warrant issued in the Dublin Metropolitan District It was certainly unusual to say the least that a single judge should be in a position to make orders purporting to have effect simultaneously in four District Court districts without leaving the chambers of the President in the Dublin Metropolitan District This could only be achieved by the combination of the exercise of the power to assign District Judges and the claim that he was not required at least for the purposes of the power to issue warrants to sit in the district to which he was assigned The Power to assign to more than one District The learned President decided this issue against the Appellants in reliance on the Interpretation Act He had to interpret the following words of paragraph 3 2 of the Sixth Schedule to the Courts Supplemental Provisions Act 1961 as amended by section 37 of the Courts and Court Officers Act 1995 A judge of the District Court who is not for the time being permanently assigned to a district may from time to time be assigned by the President of the District Court to any district He considered that the words any district could be either singular or plural Thus the President had power to assign Judge Anderson simultaneously to several districts The Appellants submit that a District Judge cannot be assigned to more than one district on any one day An assignment may be to any district and not to any number of districts which it is submitted is the consequence of the learned President s interpretation The word any cannot import both the singular and the plural The Respondents say that this argument is misconceived There is nothing incongruous about construing the provision as allowing assignments to any districts It seems to me that the problem presented in the unusual circumstances of this case arises not so much from the multiple assignment of Judge Anderson as from the fact that he purported to sit other than within the districts in respect of which he purported to make orders When one reads the amended from of paragraph 3 in its entirety it becomes clear that it does not recognise any principled objection to a District Judge being assigned simultaneously to more than one district Paragraph 3 1 envisages that a permanently assigned Judge may from time to time be temporarily assigned by the President of the District Court to another district The paragraph carefully preserves the privileges powers and duties for the time being conferred or imposed on him or her by law in relation to his permanent district There seems to be no reason for reasons equally applicable to judges not permanently assigned to interpret that provision as restricting the President s power to one such temporary assignment The Interpretation Act enables the word district to take the plural form There does not seem to me to be any reason to interpret paragraph 3 2 differently The word district may or may not be given the plural form any districts In my view however that is not even necessary The President may make an assignment to any district in the singular and later make a further assignment of the same judge to any other district While it may be constitutionally significant that the legislature decided to transfer this power from the Minister to the President it is also obvious that this gives greater flexibility to the system It enables the President to react to the changing demands on the District Court and to assign Judges according to need Subject to consideration of the quite separate issue of whether a District Judge may sit otherwise than within his district I can see no objection to the possibility of a District Judge being assigned to more than one district at the same time It may well be convenient and may accord with the efficient despatch of the business of the court for the President to be able to assign a Judge to sit in any one of a number of specified districts as the need arises It does not follow that the President could assign any or all judges routinely to sit in all District Court districts I agree with the reservations of Geoghegan J in this respect I would therefore uphold the decision of the learned President on this point May a District Judge exercise powers in relation to a district while sitting elsewhere This is undoubtedly the most substantial and it was agreed to be the most difficult question which arose at the hearing of the appeal The learned President decided this issue against the Appellants by reference to the history of the exercise of powers of courts of summary jurisdiction in Ireland prior to 1923 He accepted that a distinction should be made between judicial and ministerial acts The latter could be performed he held while a judge was sitting outside his district while the former could not It is essential for an understanding of this decision to set out the essential steps of his analysis which were as follows 1 The President held that the combined effect of the provisions of the Courts of Justice Acts 1924 to 1961 is that a District Judge has all the jurisdiction formerly vested in a justice of the peace when not sitting at petty sessions 2 Referring to The State Dowling v Kingston 1937 I R 699 he held that this jurisdiction included both ministerial and judicial acts He then reviewed at some length a number of authorities relating to the distinction between these two types of act To a considerable extent those authorities were concerned with whether justices were amenable to certiorari which they would be if the act in question were purely ministerial whereas they would not be if they were exercising a discretionary power 3 A number of the authorities cited by the learned President suggested that the issuing of a warrant was the exercise of a judicial power O Connor Justice of the Peace page 145 footnote 1 says The issuing of a warrant it is submitted is judicial In Fourth City Building Society v Church Warden of Eastham 1892 1 QB 661 it was held that that justices deciding on the issue of a warrant to distrain for rates were not necessarily exercising a ministerial duty but are entitled to enquire into the validity of the objections taken by the party summoned and to state a case for the opinion of the High Court The learned President concluded that this showed that the act was judicial 4 The learned President cited a number of cases from Paley s Law and Practice of Summary Jurisdiction concerning the distinction for the purpose of determining whether justices could be liable in damages They could not be liable in respect of purely ministerial acts He referred to only one decision relevant to whether a power might be exercised while a justice was not physically present within his jurisdiction That was a case of Helier v Benhurst summarised in Paley relating to the oath to be taken by a person preparatory to an action against the Hundred under the Statute of Hue and Cry The justice taking the oath was not physically present within his jurisdiction but as the act was purely ministerial he having no discretion to refuse to take the same the oath was good 5 Finally the learned President referred to two decisions one of the former Supreme Court State Batchelor v District Justice O Floinn and another 1958 I R 155 and one of the present Supreme Court Simple Imports Ltd and others v Revenue Commissioners and others 2000 I R 243 In the final analysis his judgment turned on the distinction he drew between these two cases In the first the Court O Daly J held that a warrant under the Merchandise Marks Act 1887 could be issued only after a judicial consideration of the evidence In the second Keane J stated the District Judge was no doubt performing a purely ministerial act in issuing the warrant These cases will need fuller discussion in the light of the submissions on the appeal Submissions regarding the power of Judge Anderson to sit outside his district Mr Michael Collins Senior Counsel on behalf of the Appellants fully supported the approach and analysis adopted by the learned President In particular he argued for the maintenance of a distinction between ministerial and judicial acts as applied by the learned President to the District Court He accepted that a purely ministerial act may be performed by a District Judge while he is not physically present in his district He submitted that the learned President erred only in holding that the issuing of a search warrant was not a judicial act In particular he said that he misinterpreted the dictum of Keane J in Simple Imports and that it is clear that a District Judge must satisfy himself that the facts have been sufficiently proved to enable him to exercise his discretion and that this is a judicial function The Batchelors case shows that this is a judicial function He also referred to the decisions of Hamilton J in the High Court in Berkeley v Edwards 1988 I R 217 and Byrne v Grey 1988 I R 31 Mr Collins presented a detailed argument at the hearing of the appeal concerning the establishment and the jurisdiction of the District Court and the transfer to it of certain powers and functions exercised by justices prior to 1922 He said that the Courts of Justice Act 1924 creates no specific jurisdiction regarding search warrants and that it is therefore necessary to look at section 22 of that Act for the carry over of previous powers and jurisdictions He laid particular emphasis on the continuity between the previous powers of justices and the powers of the District Court saying that the regulation of the limits of the powers of the previous justices of the peace applied to the new District Justices It was only as an alternative argument that Mr Collins submitted that the entire scheme of the Courts of Justice Acts show that the District Court may exercise its jurisdiction only in accordance with the statutory scheme of districts Decision on whether a District Judge can exercise jurisdiction while sitting outside his area At one level it would be possible to dispose of this appeal by simply considering whether the learned President was correct in law in holding that the issue of a search warrant is a ministerial and not a judicial act or at least an act in respect of which the District Judge is bound to act judicially As I will explain I am satisfied that the learned President fell into error in holding that it was purely ministerial However I also believe that the Appellants analysis of the nature of the powers of the District Court is erroneous However I do not think it is possible to reach a definitive conclusion on the issue without consideration of the nature and origin of that court Kennedy C J in R Moore v O Hanrahan 1927 I R 406 at 416 traced the historical background to the jurisdiction of the District Court In the period intervening between the signing of the Treaty in December 1922 and the passing of the Courts of Justice Act 1924 based on the Report of the Glenavy Committee the government dispensed with the services of the existing Resident Magistrates the Notice to Quit by terminating all commissions of the peace granted by the former British administration It used the power conferred by the Constabulary Ireland Act 1836 6 7 William IV Chapter 13 to appoint 27 new persons designating them as District Justices Section 6 of the Adaptation of Enactments Act 1922 defined a District Justice to mean a Magistrate appointed since the 6th day of December 1922 under the British Statute 6 7 William IV Chapter 13 The section provided that every power authority and duty conferred or imposed by any British Statute either on one or more Justices or Resident Magistrates was thenceforth to be exercisable or performable by one District Justice The District Justices Temporary Provisions Act 1923 provided for the appointment of District Justices Section 2 so far as relevant provided 2 1 It shall be the duty of each District Justice appointed under this Act to hold District Courts at such places within the District allotted to him and at such times as shall be prescribed by the Minister 2 A District Justice sitting in and holding a District Court pursuant to this Act shall have all the powers jurisdiction and authority which were immediately before the 6th day of December 1922 vested by statute or otherwise in a Justice of the Peace sitting in Petty Sessions emphasis added The Act of 1923 did not however establish a new court That took place only with the passing of the Courts of Justice Act 1924 section 67 of which established the new District Court of Justice Section 68 of that Act provided When and so soon as the Minister for Home Affairs has divided Saorstát Eireann into suitable Districts there shall be appointed so many Justices Breitheamhain of the District Court as may be necessary Provided that the number of such justices at any time shall not exceed thirty three Section 77 provided that the District Court shall have and exercise all powers jurisdictions and authorities which immediately before the 6th day of December 1922 were vested by statute or otherwise in Justices or a Justice of the Peace sitting at Petty Sessions That was the transferred jurisdiction It was supplemented by section 78 which transferred inter alia all jurisdictions vested in or capable of being exercised by District Justices pursuant to the Act of 1923 Section 77 also conferred what might be called new originating jurisdictions both civil and criminal and in respect of licensing Section 79 as amended in some subsequent enactments lays down clear rules for the local exercise of jurisdiction in respect of each of the three categories of case criminal civil and licensing It is true that there is no universal provision for local jurisdiction exercisable in every type of case Nonetheless it is clear that the District Court was to be what its name implies namely a court exercising jurisdiction in designated districts with District Justices assigned to each It is curious nonetheless that section 2 2 of the Act of 1923 which appears to have laid down such a rule does not appear to have been repealed I agree however with the observation of Geoghegan J that the provision must be regarded as being spent It merely illustrates the underlying assumption that the jurisdiction is to be exercised by reference to districts designated for the District Court In a series of cases decided in the 1930 s the then High Court and Supreme Court traced the devolution of powers on the District Justices appointed pursuant to the Courts of Justice Act 1924 The High Court in State Dowling v Kingston a case cited by the learned President considered the power of arrest under backed warrants established by section 29 of the Petty Sessions Ireland Act 1851 The judgments refer to this power as a ministerial act It had been submitted that as such the power had not devolved on the District Court Hanna J said Every Judge has in virtue of his office to do ministerial acts in addition to the exercise of his judicial power It is well settled law that this very act of backing a warrant is a ministerial act Jurisdiction is also used in some of the sections of the Courts of Justice Act to indicate the territorial limits of the Justices power and authority I am of opinion that the narrow meaning attempted to be put upon the word jurisdiction under sect 78 of the Act of 1924 cannot be sustained In my opinion jurisdiction in that section is a compendious word and includes all the functions within the range of the ministerial territorial or judicial powers of the District Justice whether performed in Court or in the execution of his office It would therefore include the power of backing a warrant if Mr Little a District Justice who had backed a Scottish arrest warrant was the legislative descendant of the Justice mentioned in sect 29 of the Petty Sessions Act Mr Collins placed particular reliance on section 22 of the Act applied to the District Court by section 78 It reads The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be exercised so far as regards pleading practice and procedure generally including liability as to costs in the manner provided by such rules of court as may be made pursuant to this Part of this Act and where no provision is contained in any such rules of court and as long as there shall be no rule with reference thereto it shall be exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred by this Act emphasis added That provision concerns pleading practice and procedure generally It does not confer jurisdiction where it does not otherwise exist The former High Court and Supreme Court in State Dowling v Kingston were concerned as clearly emerges from the judgment of Hanna J to establish whether the power of backing warrants under the Petty Sessions Act had been transferred to the District Court It was in that sense that Hanna J used the expression legislative descendant The present case is not concerned with the devolution of a power which existed before 1922 It concerns powers to issue search warrants newly created respectively in 1994 and 1996 Section 22 of the Act of 1924 does not assist The jurisdiction conferred by the Acts of 1994 and 1996 must be exercised in accordance with the rules of the District Court and if there are none in accordance with the applicable provisions of the Courts of Justice Acts The District Court was newly established under the Constitution by the Courts Establishment and Constitution Act 1961 Section 5 of that Act provides that it is to be constituted of a President and such number of other judges as may from time to time be fixed by Act of the Oireachtas Section 22 of the Courts of Justice Act 1953 had provided for the creation of District Court districts Although that section was repealed by the Act of 1961 section 32 2 of the latter Act provided that the districts created under section 22 repealed by this Act of the Act of 1953 and the Dublin Metropolitan District shall be the district court districts for the purposes of the District Court Section 32 3 provides The provisions which relate to the assignment of justices of the District Court to districts set out in the Sixth Schedule to this Act shall have effect Thus the acts provide for the creation of districts for the purposes of the District Court and for the assignment of District Judges to those districts Section 79 of the Courts of Justice Act 1924 remains in force It lays down the rules for the exercise of local jurisdiction For example it states In criminal cases it is to be exercised by a Justice for the time being assigned to the District wherein the crime has been committed or the accused has been arrested or resides There is however no express provision that the District Judge can only exercise his jurisdiction while sitting in his district In my view the reason can only be that this is considered to be so obvious as not to need

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/9eb804f25d35b7f880256f3f004c8529?OpenDocument&TableRow=2.1 (2016-02-09)
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  • pursuant to s 38 of the Courts of Justice Act 1936 and s 16 of the Courts of Justice Act 1947 For that reason this court has consistently declined to consider an issue of constitutional law which though arising in a case not yet determined by it has not been fully argued and decided in the High Court save in the most exceptional circumstances see The Attorney General v Open Door Counselling Ltd No 2 1994 2 IR 333 Blehein v Murphy 2000 2 IR 231 239 and Dunnes Stores Ireland Company v Ryan unreported judgments delivered 8th February 2000 Consistently with that principle the court has declined to allow a party to raise an issue for the first time which has never been raised in the High Court In K D otherwise C v M C 1985 IR 697 the appellant sought to raise in nullity proceedings an issue which had never been raised in the High Court relying in particular on the fact that the effect of a decree of nullity would determine the legal status of a child born to the union between the Respondent and the petitioner thereby rendering it an exceptional case Finlay C J with whom the other members of the court agreed said It is a fundamental principle arising from the exclusively appellate jurisdiction of this court in cases such as this that save in the most exceptional circumstances the court should not hear and determine an issue which has not been tried and decided in the High Court To that fundamental rule or principle there may be exceptions but they must be clearly required in the interest of justice This case cannot in my view however provide such an exception The present case is manifestly distinguishable from that case in one critical respect Not merely did the Statement of Opposition expressly rely on the discretionary nature of the relief sought in the proceedings and the circumstances which as the Respondent urged should preclude its being granted in this case the matter was fully argued by counsel when the case came on for hearing The learned trial judge having decided that the Applicant had not established that he was entitled to any of the reliefs claimed concluded that it was not necessary for him to express any view on whether in any event the Applicant should also have been refused the reliefs sought in exercise of the court s discretion I am satisfied that in such a case this court is not deprived of its jurisdiction to consider whether the Applicant should be refused the reliefs sought on discretionary grounds because the High Court has not adjudicated on that issue It would seem to me unjust that where a particular ground has been raised and fully argued in the High Court a party should be precluded from obtaining a decision on that ground in this court through no fault of his own In the present case it would mean that the case would

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/12b6803728a4ef0380256e15003f227c?OpenDocument&TableRow=2.1 (2016-02-09)
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  • fresh inquiry Leave to seek these reliefs by way of judicial review was refused in the High Court Kelly J and the inquiry proceeded on the 20th February 2002 and on the following two days The transcript of these three days hearing was exhibited in these proceedings From reading them it appears that there was no major disputed issue of primary fact nor any major legal issue The principle issues seem to relate to whether certain actions performed by the applicant amounted to misconduct in the eyes of qualified members of the medical profession and lay members of the Committee 11 The applicant applied to the Supreme Court by way of appeal from the order refusing him leave and was granted leave to apply by the Supreme Court on the 22nd February 2002 He also obtained from the Supreme Court an order restraining the Fitness to Practice Committee of the Council from reaching a determination in the inquiry until after the determination of the present proceedings Having been granted leave his motion for the relief claimed in the statement grounding the present proceedings were heard and determined as mentioned above by the judgment of the High Court Ó Caoimh J delivered on the 28th April 2003 from which order this appeal is taken The first issue 12 It is convenient to deal first with a particular contention of the respondent This is to the effect that the applicant has been guilty of delay which both puts him outside of the time limited by order 84 rule 21 of the Rules of the Superior Court for seeking relief by way of judicial review and furthermore is in itself gross inordinate and inexcusable Further or in the alternative the respondent says the applicant should be refused relief in the discretion of the Court on the basis that the present proceedings are an abuse of the process of the Court unreasonable unjust and contrary to fair procedures This is on the basis that the applicant could have raised the issue of legal aid or funded legal representation at any time after he was first notified of the decision to proceed to Inquiry on the 28th October 1999 or at the latest when the first inquiry was fixed by formal notice dated the 21st February 2000 Because of these matters the respondent claims it has been seriously delayed in discharging its statutory function of holding an inquiry into allegations of professional misconduct against a medical practitioner and has been put to considerable inconvenience and expense It is confronted with two sets of judicial review proceedings where one would have been sufficient Witnesses including the patients involved in the incident in July 1997 have been inconvenienced and the proceedings before the Fitness to Practice Committee gravely and needlessly prolonged Furthermore say the respondents the applicant has made no attempt to explain why he did not agitate his claim to legal aid or funded legal representation in the first set of judicial review proceedings The law 13 In advancing this contention counsel for the respondent relied on the recent decision of this Court in Eamon Carroll and Mary Carroll and Chris Ryan John Rogers and the Law Society of Ireland Supreme Court unreported 21st January 2003 This case featured an application of what might be called the principle in Henderson v Henderson 1843 3 Hare 100 In a famous passage more often cited in recent years than in the decades immediately after its delivery Sir James Wigram V C said I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation in and adjudication by a court of competent jurisdiction the Court requires the parties to that litigation to bring forward the whole case and will not except under special circumstances permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest but which was not brought forward only because they have from negligence inadvertence or even accident omitted part of their case The plea of res judicata applies except in special cases not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time 14 In Cox v Dublin City Distillery No 2 1915 1 IR 345 Pallas C B without apparently being referred to Henderson held that a party to previous litigation as against the other party in that action was bound not only by any defences which they did raise in that suit but also any defence which they might raised but did not raise therein 15 Although the principle thus expressed has never been doubted there has in recent years been a good deal of debate as to its precise legal nature and taxonomy and as to the circumstances in which and rigidity with which it should be applied Many of these issues are debated in an illuminating article by Mr Justice Handley a judge of the Court of Appeal of New South Wales in 118 LQR 397 A closer look at Henderson v Henderson July 2002 The learned author cites various recent and not entirely consistent applications of the principle In particular he considers too crude and too mechanistic the application of it in Yat Tung Investment Company Limited v Dao Heng Bank Limited 1975 AC 518 In that case Lord Kilbrandon and his colleagues dismissed as an abuse of process proceedings which were an attempt to raise matters which could and therefore should have been litigated in earlier proceedings Handley J prefers the approach of Lord Bingham in Johnson v Gore Wood 2002 WLR 72 He said Henderson v Henderson abuse of process as now understood although separate and distinct from cause of action estoppel

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/b270fb7b7d28356d80256e15003f7930?OpenDocument&TableRow=2.1 (2016-02-09)
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