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  • been appealed to this Court The appeal refers to the refusal of McGovern J to recuse himself on grounds of alleged objective bias 17 These matters in the High Court stand adjourned pending the hearing of the appeal in the Supreme Court 18 The remaining appellants have raised issues as to a mortgage held by McGovern J and associations with the respondent 19 McGovern J in refusing to recuse himself stated I m not going to recuse myself My wife was in a partnership in which I had no involvement They may have had borrowings in the past with Bank of Ireland All those borrowings as far as I m aware have been discharged My wife and I did have a mortgage on our home like so many other people and Bank of Ireland were the people we banked with That has been paid off I may have had a mortgage on more than one property with Bank of Ireland They have all been paid off I hold a current account and maybe a deposit account with Bank of Ireland but I have no borrowings from Bank of Ireland In a country this size if everybody was to recuse themselves on the basis that they have a banking arrangement of that nature with a bank nothing would ever get done I m not a shareholder in Bank of Ireland I have never been a shareholder in Bank of Ireland I merely have a bank account with Bank of Ireland and I don t see that as any reason why I should recuse myself and I am refusing that application because there s no reason why this matter should be delayed It s in the Commercial List and it has been sent to me to be dealt with and whatever has to be done I will deal with it 20 The law to be applied on an application for a stay has been stated and re stated in cases The Court seeks to maintain a balance so that justice will not be denied to any party This means that the circumstances of the case require consideration by the Court In Danske Bank v McFadden 2010 IEHC 119 Clarke J addressed the principles to be applied by a court in contemplating a stay 21 This analysis reflects the words of Egan J in Redmond v Ireland 1992 2 IR 362 at p 368 the court must form some view even though not a final view on the reality of the likely outcome of the appeal 22 The law as to objective bias has been clearly stated by this Court see Bula Ltd v Tara Mines Ltd 2000 4 I R 412 Kenny v Trinity College Dublin 2008 2 I R 40 O Callaghan v Mahon 2008 2 I R 514 O Ceallaigh v An Bord Altranais 2011 IESC 50 23 In all the circumstances of the case I would not grant a stay to the remaining appellants 24 However in all the circumstances it would be appropriate to prioritise the appeal in this case Thus on the delivery of this judgment the Court will discuss with the parties directions for the hearing of the appeal 25 In conclusion consequently I would deny the application for a stay and the motion will be dismissed THE SUPREME COURT Appeal No 373 14 Denham C J MacMenamin J Laffoy J Between The Governors and Company of the Bank of Ireland Plaintiff Respondent and Blake O Donnell Bruce O Donnell Brian O Donnell and Mary Patricia O Donnell Defendants Appellants Judgment delivered on the 8th day of December 2015 by Denham C J 1 Blake O Donnell Bruce O Donnell Brian O Donnell and Mary Patricia O Donnell the defendants appellants are referred to collectively as the appellants The Governor and Company of the Bank of Ireland the plaintiff respondent is referred to as the respondent 2 The appellants have brought a motion seeking an order of a stay on the order of McGovern J dated the 21st July 2014 and perfected on the 24th July 2014 3 This motion was listed with and heard together with a motion brought by Brian O Donnell and Mary Patricia O Donnell seeking to apply to the Supreme Court for leave to extend time to appeal an order of Kelly J dated the 12th December 2011 which was perfected on the 14th December 2011 4 In that said motion the Court found that Brian O Donnell and Mary Patricia O Donnell did not have locus standi to bring that application as they were declared bankrupts 5 The reasons given in that application on which judgment is given today are applicable to Brian O Donnell and Mary Patricia O Donnell in this motion also 6 Brian O Donnell and Mary Patricia O Donnell were adjudicated bankrupt by the High Court Charleton J on the 23rd August 2013 and an application for a stay was refused 7 Once declared bankrupt the appellants property rights vested in the Official Assignee under s 44 of the Bankruptcy Act 1988 referred to as the Act of 1988 Under s 3 of the Act of 1988 the term property includes things in action which includes the right to litigate 8 The plenary summons in these proceedings on the general endorsement of claim seek 1 A declaration that the issued shares of Havergate Investments Limited formerly Columbus Courtyard Limited being 6 000 ord US 1 shares are the shares of the Third and Fourth Named Defendants or are held for their benefit and are not the property of the First Named Defendant or of Huntston Limited nor subject to any trust in the First Named Defendant s favour 2 A declaration that the issued shares of Kennor Advisory Limited formerly Fourteen Ninety Two Management Limited being 5 100 ord US 1 shares are the shares of the Third and Fourth Named Defendants or are held for their benefit and are not the property of the First

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  • Buggle one of the two objectors and Mr Kilty himself Amendment During the Judicial Review Hearing 15 During the hearing before him the High Court judge amended the statement of grounds on one point This was to include an added claim based on the information which had by then emerged The amendment was to the effect that the Isaac Wunder order was ultra vires No other amendment to the statement of grounds was sought or granted The statement of grounds did not contain any claim that costs should be awarded personally against the District judge Holding that there were grounds for finding objective bias on the basis of non disclosure of the professional relationship the High Court judge granted a declaration that the respondent had breached the applicant s right to fair procedures and quashed the other orders which he held to be ultra vires He made no finding of objective bias The Costs Order 16 The High Court judgment was delivered ex tempore The judge noted that the notice party had been effectively caught in the crossfire had not had any knowledge of the warning note and had not had any hand act or part in the so called Isaac Wunder order that was made But when he came to deal with costs he said The order for costs therefore will be an order in favour of the applicant Mr Kilty against the respondent the District judge and an order in favour of the third party Campion Property also against the respondent in this matter This conclusion was reflected in the order of the High Court dated 30th March 2012 The judge was not reminded that he had previously made an order to the effect that the District judge need not participate in the judicial review Submissions 17 The primary question which arises in this appeal is whether the costs order can stand Counsel for the District judge submits a costs order should never have been made in his client s absence He refers to decided authority on judicial immunity for costs 18 Counsel for Mr Kilty makes essentially two alternative arguments First he submits the costs order should stand as having been lawfully made Alternatively he contends that this Court should now make a wide range of orders in order to ascertain the full circumstances surrounding the making of the impugned District Court orders He suggests that this Court should order further discovery against the District Court clerk and against the other parties I infer from this that the intent is that this Court might find that even in light of some procedural frailty it would be nonetheless justified in making a costs award against the District judge Additionally counsel sought to argue that a number of judgments of this Court including McIlwraith v Fawsitt 1990 1 I R 343 should now be reviewed as being no longer in accordance with ECHR jurisprudence No such argument appears in the High Court transcript There is strong authority that an argument should not be permitted to be made for the first time in this Court save in exceptional circumstances which do not arise On the general principle see K D otherwise C v M C 1985 I R 697 per Finlay C J The Primary Issue 19 But antecedent to any other question there arises the question of fair procedures The learned High Court judge made a costs order against a party who was unrepresented when the order was made It is entirely understandable that Hedigan J would not recollect that in the motion for directions he himself had made the order dispensing with the need for the District judge to be represented Judging from the transcript he felt that the District judge had simply chosen not to participate in the judicial review Here the judge was under a misapprehension 20 It is only fair to point out there had been a change of legal team But nevertheless there was a duty on the party who had brought the motion for directions to remind the High Court judge as to his previous order This order was made one year earlier doubtless in a busy list As a matter of first principle a court should not make an adverse order against an absent or unrepresented party or one who is not on notice of the application Such a course of action breaches the principle of audi alteram partem Further Submissions by Mr Kilty s Counsel 21 I do not disregard the fact that counsel for Mr Kilty now points out that the District judge must have been well aware that he had made the warning note and of the fact that he had also made the Isaac Wunder order and that these had only come to light on the day of the full judicial review hearing He submits these matters were within the District judge s knowledge and could have been acknowledged earlier He contends that were the matter to proceed further in this Court a number of areas would require to be more fully explored This would require the production of a range of further documentation and communications I make no comment as to whether these materials would have been privileged I can only infer this as an application that this Court should embark on a fact finding hearing The Supreme Court is the Court of Final Appeal under the Constitution The ascertainment of issues of fact and law should be dealt with in the High Court as the Court of First Instance designated as such under the Constitution Decision 22 The determinative questions in this appeal go to constitutional justice and fair procedures An unrepresented party cannot be the subject of an adverse costs order unless such party is on notice of an application for that purpose See by analogy Staunton v Toyota 1996 ILRM 171 at 177 23 In Staunton this Court held that a third party joined to the proceedings but who did not participate in the hearing between the plaintiff and the defendant had a right to be heard in the determination of the liability question in a personal injury case before the trial judge and that a failure to allow the third party to be heard amounted to a denial of fair procedures 24 In Clarke v District Judge Hogan 1995 1 I R 31 heard in the High Court Barron J held that in circumstances where a District judge was minded to bind over a witness to keep the peace he should have so indicated and that the District judge by making such an order in the absence of notice to the witness had acted unlawfully I would adopt the observations of O Hanlon J in S v S 1983 I R 75 at 81 that the combined effect of Articles 34 1 38 1 and 40 3 of the Constitution gives rise to a constitutional right to fair procedures in court proceedings See generally Re Haughey 1971 I R 217 25 Taking these principles together it is clear that on this occasion the High Court judge erred in making the costs order A party potentially affected by a final court order is entitled to be given adequate notice of the possibility of such an order being made Such an order should not be made at least in the absence of notice to a party that such application might be made This is not of course to say that by failing to attend a court proceeding a party who is on notice can prevent an adverse order being made What is necessary in such a context is that a court be satisfied a party is on notice of the application and the potential orders which might foreseeably be made 26 It would be inappropriate for this Court to embark on the form of enquiry which is urged by counsel on behalf of Mr Kilty The Supreme Court is not a Court of First Instance Furthermore no application was made at any stage to amend the statement of grounds to seek costs against the District judge see AP v DPP 2011 IESC 2 As this Court emphasised in AP it is the duty of an applicant in judicial review to set out clearly each of the reliefs claimed against a respondent or a party who might be affected It is not open to this Court at this stage to make an order amending the statement of grounds There is no cross appeal or notice to vary filed by the respondent 27 The question of judicial immunity arose in McIlwraith v Fawsitt 1990 1 I R 343 and O Connor v Carroll 1999 2 I R 160 I express no further view thereon Any further issue and the extent of any immunity arising are matters which fall to be determined by the High Court in the first instance utilising well established procedures for fact finding By remitting the matter neither party will be debarred from a right of appeal on a matter potentially of some gravity Proposed Order 28 The present order for costs made against the respondent District judge having been made in the absence of jurisdiction cannot stand I would therefore allow the appeal and remit the question of the costs award to the High Court THE SUPREME COURT Appeal No 167 2012 Record No 798JR 2010 Denham C J O Donnell J McKechnie J MacMenamin J Charleton J BETWEEN BRENDAN KILTY APPLICANT AND JUDGE CORMAC DUNNE RESPONDENT AND CAMPION PROPERTY CONSULTANTS LIMITED NOTICE PARTY Judgment of Mr Justice John MacMenamin dated the 7th day of December 2015 1 On the 13th October 2011 the High Court Hedigan J delivered an ex tempore judgment in judicial review proceedings brought by the respondent to this appeal Mr Brendan Kilty In those proceedings Mr Kilty sought to quash certain orders made by the appellant the District Judge in an application to renew an auctioneers licence held by the notice party herein Campion Property The learned High Court judge holding there had been objective bias decided to quash orders made by the District judge The issue now in controversy concerns the ancillary order for costs made in the High Court judicial review The District judge was not represented in the judicial review hearing He had been absolved from participation by a direction of the High Court Nonetheless the learned High Court judge made costs orders against him The District judge now appeals that order The Appellant s Submissions 2 In summary counsel for the appellant District judge submits to this Court i That the High Court judge failed to consider the established rule of law that in the absence of a finding of mala fides or impropriety costs should not be awarded against a respondent judge ii That a principle of immunity of this type applies a fortiori in circumstances where such as here the District judge did not defend the application for judicial review and where the notice party was the only legitimus contradictor iii That prior to the High Court judge making his award of costs no submission was made to the High Court judge on the general principle of judicial immunity to costs orders despite the fact that correspondence from the Chief State Solicitor written on behalf of the District judge and sent to the other parties had identified the generally applicable principles regarding judicial immunity from costs and made clear that the judge did not contend to be an active party in the hearing iv That the letters referred to at iii above were not brought to the attention of the High Court judge at the time of the costs application Background Circumstances 3 Mr Brendan Kilty who is a senior counsel became involved in a legal dispute with Campion Property The issues centred around that firm s role in the disposal of properties which Mr Kilty had owned Mr Kilty was concerned that Campion Property had had a conflict of interest and sold at undervalue Ultimately Campion Property sued for fees which they said they were owed Mr Kilty counter claimed claiming the company s directors had acted in breach of duty and in bad faith After a 10 day plenary hearing the auctioneers succeeded in the High Court action They obtained judgment in the sum of 356 386 99 Mr Kilty unsuccessfully appealed that judgment to this Court The District Court licence application which forms the background to this judicial review occurred after the High Court plenary proceedings but before the appeal therefrom to this Court The District Court Proceedings 4 The proceedings before District Judge Dunne concerned the renewal of Campion Property s licence The hearings took place over 3 separate days from October 2009 to January 2010 Two men who were acquaintances of Mr Kilty were the original objectors to the licence renewal 5 The District judge heard and granted the application to renew the licence He rejected the objections On the third day of the hearing Mr Kilty sought to be added as an objector The District judge held that his objection came too late 6 In what follows I summarise a series of allegations and counter allegations made in the judicial review They are a necessary part of the narrative They are not findings by this Court 7 In the judicial review Mr Kilty deposed that he subsequently found out that there had been a professional and business relationship between the District judge and Messrs Eversheds O Donnell Sweeney EODS the solicitors firm which acted for Campion Property in the licensing renewal application He said the firm had also acted for the District judge in significant commercial litigation in which he the judge was involved It appears that Mr Kilty also had concerns as to the manner in which the same firm acted for himself in a commercial property matter Mr Kilty considered there was an undisclosed business relationship between the District judge and EODS which gave rise to a reasonable apprehension of objective bias He alleged his concern was more acute because he was of the view that Mr Rory O Donnell a senior solicitor and partner in EODS had shown support for Campion Property s directors during the renewal hearings Mr O Donnell denied that he had acted in any way improperly or with an intent to influence the District judge Moreover Mr O Donnell denied that he had ever known the District judge or that he had been aware that his firm had acted for the latter The affidavits in the judicial review contain much other material that is irrelevant to the issue The Judicial Review Proceedings 8 Later it emerged that the District judge had not only granted the certificate of renewal to Campion Property but also made a number of further orders which came into focus in the judicial review hearing It is necessary to set out how this occurred 9 On the 21st June 2010 counsel then acting for Mr Kilty applied for and were granted leave to seek judicial review of the District judge s order essentially on the grounds of objective bias The District judge was named as respondent and Campion Property as a notice party On the leave application Mr Kilty s then counsel was directed by the High Court to serve an originating notice of motion returnable for the 8th July 2010 on the Chief State Solicitor representing the District judge and on the notice party 10 Correspondence took place between the parties This exchange was partly intended precisely to identify the role which the District judge was to play in the judicial review The Chief State Solicitor s office took the view first that in accordance with case law a District judge should not actively participate in such proceedings Second the correspondence drew attention to jurisprudence concerning judicial immunity against costs awards made in the performance of judicial functions None of this correspondence mentioned certain unusual orders which it transpired the District judge made during the licence renewal application The Applicant s Motion for Directions 11 Before the judicial review hearing proper Mr Kilty s counsel took the somewhat unusual course of bringing a motion for directions This application raised a number of matters All were focused on the role envisaged for the District judge in the forthcoming judicial review Questions raised included 1 Is it appropriate to join a District Court judge to judicial review proceedings against him her 2 Should a judge be served and should a judge be struck from the proceedings once leave is granted 3 Should a judge be joined where the applicant is making an allegation of bias against the judge 12 Under each heading the motion paper set out and by way of submission quoted from a number of legal authorities which considered the appropriateness of District judges active participation in judicial review proceedings in which their orders were impugned Brief reference is made to these authorities later in this judgment But as part of the motion application and in response to the last rhetorical question 3 above Mr Kilty s legal advisors acknowledged the following The applicant accepts that costs cannot be awarded against a District judge when he does not take an active part in proceedings But this rather begs the question where there is an allegation of bias should the judge take an active part in proceedings emphasis added There is no doubt that by then Mr Kilty s advisors were alive to the fact that the general question of judicial immunity from costs orders was part of the consideration 13 This motion for directions was heard by the High Court on the 14th October 2010 Hedigan J declined to make any order to the effect that the District judge should actively participate His order provided rather The Court doth direct that this matter proceed without the participation of the Respondent at this time and the Court doth reserve the Costs of this Application emphasis added

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  • then the Applicant may seek to introduce them in cross examination of the respondent s witnesses That whole exercise would seriously inhibit and delay the progress of this arbitration I am therefore not going to allow them to be put to any witness I indicated yesterday that I was prepared to read them if required I am entrusted with resolving sic this dispute between the parties I will not be influenced as a witness might by the colour coding or the tagging and even if I hear the evidence if it was put nothing could come out of it except disagreement as to the effect of the claims as to whether the colours flags and the contents of those documents prove that the material is or is not part of the management services or the shared services Therefore I will read the seventeen books as they are and I will construe them and their content and their relevance by reference to the pleadings and in the context of the other evidence 13 It might be said perhaps with the wisdom of hindsight that there were many practical solutions to the logistical difficulties which were undoubtedly presented by the course that Fayleigh proposed to take in this respect at the arbitration A sample of the documents could have been identified which best illustrated Fayleigh s contentions A witness statement might have been required from Mr O Brien or any other witness setting out exactly what it was said the documents showed and which would then allow Plazaway s witnesses to address this specific contention But it is hard to see that it was a satisfactory solution for the arbitrator to read all of the documents themselves without reference either to the colour coding or to any evidence as to what it was said that such colour coding would lead a reader of the documentation to understand 14 In the light of subsequent events it is a little ironic that it was counsel for Plazaway who was most concerned with the course proposed Counsel sought the assurance of the arbitrator that he would only commence to read the documents after hearing the evidence The arbitrator said he would do this and day four closed with the arbitrator stating for the record that he was not taking possession of the seventeen volumes at that point day four p 132 15 The arbitration proceeded and evidence finally concluded There was a directions hearing on the 24th of June 2012 which it should be noted was sixteen months after the issue which had arisen on day four and which has been almost the sole subject of these proceedings At the conclusion of the hearing counsel for Fayleigh raised the issue of the colour coded documents The arbitrator is recorded in a contemporaneous attendance made by Plazaway s solicitors as saying I didn t know what I am to do with them but I do recall that we dealt with them by way of a direction and I said I would revisit it if necessary I don t know if I m supposed to read them or to leave them aside Counsel agreed that the question of the documents could be dealt with in the legal submissions 16 In the legal submissions made on behalf of Fayleigh the arbitrator was referred specifically to the transcript of day four and it was submitted that the documents when read would show that the involvement of Plazaway in the running of the hotel in 2008 could not in any way be regarded as consistent with its obligations under the terms of the Management Agreement This was consistent with the position taken by Fayleigh on days three and four of the arbitration hearing and with the ruling of the arbitrator However the legal submissions on behalf of Plazaway sought to take the opportunity of returning to the issue of admissibility although contending this time that since the documents had not been formally proved they could not be considered at all 17 The arbitrator delivered his award on the 1st of May 2013 He rejected Fayleigh s defence and its counter claim In relation to the claim that Plazaway had stepped back from the agreement he said at p 33 There is no other evidence anywhere of this He also recorded at p 19 that the applicant s case that the claim of stepping back from the agreement was inconsistent with the facts the day to day engagement in the management of the hotel at that time and throughout the remainder of the year 2008 and the contemporaneous documentation supporting those facts 18 The arbitrator made specific reference to the 17 volumes of documents at p 46 of his award The arguments for the Applicant and the Respondent were comprehensively advanced during the hearing and I have trawled through every paper and document submitted to the hearing I have not admitted the 17 extra lever arch files proffered by the Respondent as I do not consider them appropriate 19 The argument on behalf of Fayleigh which the High Court accepted was that since the arbitrator had specifically stated that he was going to read the documents and had accepted their relevance to its defence the failure to do so was misconduct of the arbitration in the technical sense justifying the setting aside or remittal of the award On behalf of Plazaway Bernard Dunleavy S C accepted that if the directions hearing had not occurred this conclusion was unavoidable However he argued that because of the exchange at the directions hearing which it should be said was not principally directed towards this issue the position had been reopened and the arbitrator had in effect accepted Plazaway s submission that the documents were not admissible in evidence It was argued the arbitrator was entitled to take this view of matters and even if wrong it could not be misconduct 20 I cannot accept this submission First and perhaps most importantly I do not consider that it is a valid or accurate description of what the arbitrator did The arbitrator did not decide that the documentation was inadmissible because it had not been proved or because of any other evidential infirmity Instead he held that it should not be admitted because he considered that the documents were inappropriate If this means anything it seems much closer to his firmly stated and understandable position that the arbitration should not be delayed indefinitely by trawling through 17 volumes of documentation 21 In any event even if I were to proceed on the assumption that counsel was correct and that the arbitrator had belatedly ruled that the evidence was as a matter of law inadmissible because the documentation had not been proved I do not necessarily accept that this would avail Plazaway on this appeal It was accepted as it must be that the documentation was an important part of the defence or at minimum was a matter upon which Fayleigh and Mr O Brien placed considerable weight If the arbitrator had proceeded as suggested to change his mind and rule the documentation inadmissible because of a lack of proof which was purely formal and which could easily have been provided that would have been particularly unfair not least because the course the arbitrator took on day four effectively precluded any such proof It is not however necessary to form any view as to whether even on this hypothesis there would have been misconduct since I do not accept this characterisation of the events In those circumstances the conclusion of the High Court that the arbitration was misconducted because of the simple fact that the arbitrator having said that he was going to read the documents and having acknowledged their relevance and importance did not do so is one that must be upheld 22 The trial judge considered that notwithstanding the evidence of misconduct it was open to the Court either to set aside the award in its entirety under s 38 of the 1954 Act or to remit the award to this arbitrator under section 36 On this appeal Fayleigh accepted that the Court had power to remit the matter to the arbitrator but argued that the High Court ought not to have done so but rather ought to have set aside the award Section 38 provides that if misconduct is established a court may set aside the award I am prepared to approach this case therefore on the basis that it is common case that the Court was not obliged as a matter of law to set aside any award once misconduct was found although it should be noted that no specific argument was addressed to this point Fayleigh argued that it had lost confidence in the arbitrator as a result of this matter and should not be required to submit to a further hearing before the arbitrator Fayleigh also pointed out that the arbitrator made findings rejecting the evidence of Mr O Brien and that he cannot be expected to ignore such findings and Fayleigh for its part cannot be expected to believe he would do so The position it was submitted was broadly analogous to that in Galway County Council v Samuel Kingston Construction Ltd 2010 3 I R 95 Furthermore it was argued that insomuch as the High Court may have been influenced by the fact that the arbitration had already taken an inordinate amount of time and that to reopen the entire matter would be extremely costly then that was no longer a relevant concern because Fayleigh was prepared to undertake to abandon its counterclaim which would mean that the arbitration would be much more confined 23 I do not agree that the situation is analogous to that in Galway County Council v Kingston Construction Ltd 2010 3 I R 95 In that case there was a series of matters which led the parties to justifiably lose confidence in the arbitrator Here however there is a single and to some extent understandable event It is also necessary to consider the error and that is what it was in its context The instinct of the arbitrator was entirely understandable Producing 17 volumes of colour coded documents was an entirely unwieldy way to present this aspect of the case It is also easy to see that having heard the matter over an extended period he might be tempted to treat the 17 volumes of documentation as low grade material in comparison to the direct evidence of the parties involved This evidence was only directed to supporting in some way Fayleigh s case that there had been an agreement that Plazaway would step back from the management agreement as of March 2008 The primary evidence in that regard was the oral evidence of the parties to the alleged agreement That oral evidence could also have been tested against the evidence of fact as to what occurred on the ground in the hotel during the relevant period The documentation contained in the 17 volumes was not new to the arbitrator and the significance of the volumes was only the manner in which the documentation was arranged and analysed It is also relevant that that arrangement and analysis was not the result of any independent or expert analysis It was the inevitably subjective analysis carried out by Mr O Brien and undoubtedly was open to query on that ground Therefore although the colour coding issue in relation to the 17 volumes is important as a matter of fairness because of the emphasis Mr O Brien and Fayleigh placed upon it nevertheless it was a somewhat peripheral matter Since Fayleigh placed reliance upon it it was entitled to have it considered The failure to do so was misconduct but that itself does not say anything as to the weight of the point in the arbitration 24 The principal significance of this evidence was perhaps that while an arbitrator might be tending against Mr O Brien and Fayleigh the documentation might give him pause for thought and be at best the first chink in Plazaway s case and which might in turn require that other matters be re examined That is a function they can still perform It is true that the arbitrator has rejected the Fayleigh claim and therefore Mr O Brien s evidence but those conclusions were based upon the evidence or lack of it rather than extraneous matters and therefore are findings capable of being revisited if it should transpire that the 17 volumes of colour coded material does provide some support for the Fayleigh case This of course requires the arbitrator to approach the material in a fair and open minded way In circumstances where the arbitrator has a very full familiarity with all of the issues in the case and where the significance of this issue is the impact of the documentation on those issues and where nothing else is relied on to suggest the arbitrator cannot be trusted to reconsider the matter and finally and frankly where this dispute is one which has gone on for far too long already I would uphold the trial judge s order as a sensible approach to bring finality to this case in the most effective way I would however emphasise that the remittal of this matter is not merely a question of reading the documents particularly at this remove from events The arbitrator must approach this matter with a fully open mind and should be prepared if necessary to seek submissions from the parties as to how he should proceed and if he considers the documents or any sample of them raise questions then he should take such further steps as he considers are necessary to ensure that the entire matter is finally disposed of in a fair and comprehensive fashion MISCALCULATION 25 Fayleigh also relies on what it contends is a miscalculation of the award Once the award was published new solicitors for Fayleigh sought to raise a number of points the most important of which was the question of the 17 volumes of documents A further point was the calculation of the award The solicitors argued that the annual fee payable was in principle the base fee as defined in the agreement as adjusted by reference to the Consumer Price Index This indeed is how the management fee for 2008 was calculated in the claim and consequently how the termination fee was also calculated However the solicitors for Fayleigh argued that the second schedule to the agreement provided that if the Gross Operating Profit for a year did not exceed 70 of the Minimum Gross Operating Profit then the base fee payable would be reduced by 25 The solicitors contended that this proviso applied in 2008 which meant that the claim both for the balance of management fees for 2008 and for the termination fee was overstated by 25 Although there was some initial dispute as to the applicability of the second schedule there does not now seem to be any serious contest on this calculation What is however in issue is that the point was not raised in the arbitration although this was not acknowledged in Fayleigh s correspondence Plazaway had claimed the total sum due and the only issue in the arbitration was Fayleigh s liability to pay The amount therefore was not disputed until after the award was made 26 Fayleigh relies however on a dictum of McCarthy J in Keenan v Shield Insurance Co Ltd 1988 I R 89 at p 95 where he observed in passing that Section 36 would appear to be the procedure appropriate for example to a case of a patent mistake in monetary calculation in the giving or not giving of a particular credit in an award that is on its face ambiguous or uncertain in a case where the arbitrator himself seeks to rectify some error and perhaps where fresh evidence has become available subject to the standard rules of an appellate court in such cases 27 It is certainly undesirable that a final award made by an arbitrator should now be acknowledged to be wrong even if arrived at without error on the part of the arbitrator However the Court expresses no view as to whether if this issue was the only issue in these proceedings the calculation issue raised by Fayleigh would come within this interpretation of section 36 The fact that this case is being remitted under s 36 for further consideration of the arbitrator will permit the arbitrator to correct this which is perhaps an additional if unanticipated benefit of the order made by the Court Justice will be met if there is an opportunity to correct this amount subject perhaps to any requirement that the costs of doing so should be met by the party which failed to raise the point at the original arbitration That however will be a matter for the arbitrator The parties must now be fully familiar with all aspects of this case since there has been a lengthy arbitration hearing and review hearings in the High Court and in this Court They together with their advisers should be able to make a sensible judgment about the matter The existence of a dispute resolution mechanism does not mean that parties should not seek to resolve their own disputes The Court will dismiss this appeal and thus the matter will be remitted to the arbitrator If the parties have not resolved their differences the arbitrator should proceed to deal with the matter as soon as possible 28 Plazaway also argued that in the event that the Court were to set aside the award in its entirety the costs of the court proceedings should be awarded against the arbitrator who was formally a party to the proceedings although he took no part in them In the light of the Court s decision on this matter this issue does not arise The Court was not referred to any authority as to the circumstances in which any such award would be appropriate and accordingly makes no observation thereon save to say that if any such application were to be advanced it would be essential that any arbitrator be put on notice unambiguously that such an unusual order was going to be sought THE SUPREME COURT Appeal No s 199 2014 243 2014 O Donnell J MacMenamin J Charleton J IN THE MATTER OF THE ABITRATION ACTS 1954 1998 AND IN THE MATTER OF AN ABITRATION Between Fayleigh Limited Applicant Appellant And Plazaway Limited trading as Hotel Partners And Francis Murphy Respondents Judgment delivered on the 30th of November 2015 by O Donnell J 1 This appeal marks the latest stage in a process of dispute adjudication and resolution which has been both lengthy and costly to a point where on the hearing of this appeal the Court was informed that the costs now exceed the amount in issue 2 The issues before this Court can be identified as whether the High Court was correct to find that the arbitration had been misconducted if so whether it was appropriate to remit the matter to the arbitrator for further hearing after a finding that the arbitration had been misconducted whether a calculation of the award of damages not itself challenged at the arbitration could be shown to be incorrect as a separate and independent ground for remittal and whether if the Court was to direct the setting aside of the award and a full rehearing of the arbitration it should award the costs of the proceedings against the arbitrator 3 Arbitration can often be an efficient and practical alternative to court proceedings Indeed since arbitration is in principle more costly than the court process it is justified from a policy point of view only if the proceedings can be conducted more speedily more efficiently in a less costly fashion and perhaps with a greater assurance of a result which will be satisfactory There are many areas where a dispute may involve some technical complexity and where it is an advantage in having an arbitrator with expertise in the area The public policy in favour of arbitration is to be found in legislation since 1954 and indeed its progression can be seen in the legislation up to and including the Act of 2010 which has continued a process of substantially reducing the grounds for challenge to arbitral awards As was observed in Galway County Council v Samuel Kingston Construction Ltd 2010 3 I R 95 which like this case was concerned with an arbitration under the 1954 Act as amended the system for arbitral review has a high tolerance for arbitral error This observation is only reinforced by the provisions of the 2010 Act which come very close to achieving the objective identified by McCarthy J in Keenan v Shield Insurance Company Ltd 1988 I R 89 of making an arbitration award final in every sense of the word When the parties are on relatively equal terms and can appreciate the commercial and practical benefits of a speedy and sometimes private determination there is much to be said for a decision which is binding and final Certainty has significant commercial value But sometimes as this case illustrates the practice can deviate from the theory and an arbitration may not run as smoothly as desired FACTS 4 Fayleigh Limited Fayleigh was the respondent and counter claimant in the arbitration proceedings the applicant in the High Court proceedings and is the appellant in this Court It was at the time relevant to the dispute the lessee under a 35 year lease of premises known as Trim Castle Hotel In 2006 it entered into a management agreement for a 10 year period with the respondent company Plazaway Limited Plazaway under which Plazaway agreed to manage the hotel for Fayleigh It is common case that in addition to the services provided under the management agreement Plazaway also provided what it described as shared services that is services shared with other hotels being managed by Plazaway The management agreement provided for a number of different circumstances in which the agreement might be terminated before the expiry of the 10 year term none of which arise here It also provided however that in the event that Fayleigh wished to terminate the agreement in circumstances not otherwise provided for and before the expiry of the 10 year term it was obliged to give either 12 calendar months notice in writing or to pay to Plazaway an amount equal to the fee payable for the preceding year There is no dispute about the meaning of this term but there is a vigorous dispute as to its applicability to the facts of the case and if applicable as to the correct calculation of the amount 5 On the 19th of January 2009 the solicitors then acting for Fayleigh wrote to the solicitors acting for Plazaway contending that in late March 2008 after a meeting between David O Brien the principal of Fayleigh and Colm Deignan the managing director of Plazaway that Plazaway had agreed to step back from the agreement and no longer performed its obligations under the agreement for the balance of that year It was contended that Plazaway had only continued to provide the shared services which the letter of the 19th of January 2009 also purported to terminate Plazaway contended in response that there was no such agreement to step back and that the agreement had continued until the end of December when it was terminated by Fayleigh giving rise to an obligation to pay arrears of management fees which had become payable during the balance of 2008 to the amount of 265 051 94 and also to make the terminating payment calculated on the basis of the fee payable for the period of January to December 2008 175 415 62 and furthermore to pay certain build and design fees due under the agreement amounting to 36 300 The total came to 476 767 56 Fayleigh responded to this claim by denying that any fees were due for the balance of 2008 or that any terminating fee was payable and in any event by counter claiming for damages alleged to be caused to it by the defective and negligent performance of its functions by Plazaway The agreement provided for arbitration and in due course the President of the Law Society appointed the second named respondent as an arbitrator in 2009 6 It might be noted that the disputes here involve no particular issue requiring specific expertise such as might arise in building or engineering contracts or other technical disputes The issue here was one wearily familiar to many lawyers and regularly encountered in courts a claim for an amount alleged to be due under a contract a dispute as to whether the facts give rise to entitlements a dispute as to what transpired at a meeting and the subsequent conduct of the parties and other disputes about quality of performance upon which expert evidence is called It is clear that there was one central dispute upon which a large part of the claim turned the resolution of which might necessarily have an effect on the remaining issues whether there had been an agreement in 2008 whereby Plazaway agreed to step back from the management agreement and subsequently did so If so then Plazaway was not entitled to fees for providing services under the management agreement for 2008 or to any termination fee Whatever way this matter was resolved might necessarily cast light on some of the matters raised in the counter claim In any event the question of an agreement to step back was central to the issues which were argued in the High Court and in this Court 7 The arbitration did not commence until the 21st of February 2011 and was heard over 12 days between that date and the 26th of June of the following year Since the arbitrator sat for lengthy hearing periods this it was said equated to 25 court hearing days The arbitrator published an award a further year later on the 21st of May 2013 In his award he completely rejected the contention of Fayleigh that there had been a stepping back and further dismissed the counter claim and made an award in favour of Plazaway of the full amount 476 767 56 THE HIGH COURT PROCEEDINGS 8 Plazaway sought enforcement of the award and Fayleigh immediately brought proceedings to set aside the award on the grounds that the arbitrator had misconducted the arbitration The High Court Ryan J held that there had been misconduct in the arbitration but decided not to set aside the award in its entirety but rather to remit the matter to the arbitrator Fayleigh was therefore partially successful in its claim but has appealed the decision of the High Court arguing that while not obliged as a matter of law to do so nevertheless on the facts of this case once the High Court had found that there was misconduct it ought to have set aside the award in its entirety Furthermore on this appeal Fayleigh has now indicated that that it will abandon any counter claim so that if the award is set aside the only issue it says would be ventilated in a new arbitration would be whether Plazaway was entitled to the management fee and termination payment subject to one other issue as to calculation Plazaway for its part defends this appeal by arguing in the first place that the finding of misconduct should be set aside and further arguing that if the finding is upheld the High Court was right to remit the matter to the second named respondent Furthermore Plazaway contends that should the Court accede to Fayleigh s appeal and set aside the award in its entirety so that it must start afresh before a new arbitrator the costs of the proceedings should be ordered against the arbitrator who should it is argued bear responsibility for any misconduct giving rise to these proceedings THE ALLEGATION OF MISCONDUCT 9 The decision of the High Court rests entirely on matters which have their origins in days three and four of the arbitration At this stage the claim had been opened Mr Deignan had given evidence in support of it and on day three he was being cross examined by counsel for Fayleigh On day three counsel for Plazaway made reference to seventeen volumes of documents Since these documents are central to the case it is important to describe what was involved As part of the preparation for the arbitration discovery had been made and the claimant Plazaway had discovered some seventeen volumes of documentation to Fayleigh In the course of preparation for the arbitration Plazaway had prepared books of documentation five folders of which were documents alleged to support its claim five further folders containing documents relating to the counterclaim and an additional two core books of discovery The contents of these twelve books overlapped substantially therefore with the contents of the seventeen volumes of raw discovery made by Plazaway What was significant about the seventeen volumes produced by Fayleigh on day three therefore was not the contents of the volumes but rather the fact that Mr O Brien and his solicitor had carried out an exercise of colour coding all of the documents in the seventeen volumes by reference to specific matters The result of this exercise was it was alleged that it could be seen that the level of activity post March 2008 was much less than that in the corresponding periods in previous years and moreover that such activity as had occurred post March 2008 was only consistent with the provision of shared services and not with the continued performance of the management agreement Thus the key element of the books produced on day three was the colour coding and what it was alleged to show 10 The production of this documentation in the course of cross examination led to an objection on the part of Plazaway Counsel stated that he had no objection to the matter being put to the witnesses in principle but it was necessary that the documents should be proved first This is a variant of an objection sometimes encountered in trials in court where one party seeks to object to the production of documentation or to force another party to call a witness who may otherwise not be called or might indeed be hostile to the that party But the objection here was not really of much substance since the documentation here all emanated from the plaintiff s discovery and certainly could be put to the plaintiff s main witness In so much as the colour coding required evidence then that could have been proved in due course by Mr O Brien or another witness Nevertheless counsel put his argument very succinctly on day three at pp 52 to 53 I absolutely accept what my friend says in relation to the relevance of this documentation In fact it seems to me to go very much to the heart of the Defence that has been advanced But with respect Arbitrator I don t see how it can be advanced as evidence unless it is proved and there is an opportunity to put it to the witness Thus the objection made was of an absence formal proof 11 While this evidential dispute was being ventilated the arbitrator intervened being perhaps and if so understandably anxious about the implications for the length of the arbitration if 17 volumes of documents were to be deployed in cross examination of the first and perhaps subsequent witnesses Thus he stated at p 54 I am not going to allow the situation to develop where 17 lever arch files are going to be put to this witness or any witness A short time later he said I accept that it can be very relevant in determining the involvement of the claimant or the non involvement of the claimant as you put it But it simply cannot happen that we are going to spend weeks going in to this because I don t think putting it to the witness and I accept it is the only way you can prove it as Mr Dunleavy says is that you have to put it to the witness to prove That is the only way But if that is the case somebody should toss a coin because the costs in doing that will far exceed what this is about and that is not a good way to proceed with this arbitration or with any arbitration 12 It is clear from these exchanges that neither counsel for Plazaway nor the arbitrator was in doubt as to the relevance of the documentation It is equally clear that there was a difference between their approaches Plazaway had an objection as to proof whereas the arbitrator was concerned about the practical impact on the arbitration On the following day day four there were full submissions on the issue with both counsel addressing the evidential question There was a short adjournment and the hearing resumed with the arbitrator delivering his ruling at p 28 I have listened very carefully to the arguments put forward by counsel for the applicant and by counsel for the Respondent There are 17 books containing Discovery documents which have been provided by the Applicant In my view there is no need to prove the documents themselves I do not accept that the documents therefore have to be put to this or any other witness of the Applicant because I can see them also being put of necessity to Mr Savage Yesterday I indicated my view that it would not be in the interests of either party to do so Not only because of the additional costs involved but also because inevitably the Applicant s witness will have in many instances a different view of the significance of the content of them and I will have to consider that evidence in due course If they are put to the Applicant s witness then the Applicant may seek to introduce them in cross examination of the respondent s witnesses That whole exercise would seriously inhibit and delay the progress of this arbitration I am therefore not going to allow them to be put to any witness I indicated yesterday that I was prepared to read them if required I am entrusted with resolving sic this dispute between the parties I will not be influenced as a witness might by the colour coding or the tagging and even if I hear the evidence if it was put nothing could come out of it except disagreement as to the effect of the claims as to whether the colours flags and the contents of those documents prove that the material is or is not part of the management services or the shared services Therefore I will read the seventeen books as they are and I will construe them and their content and their relevance by reference to the pleadings and in the context of the other evidence 13 It might be said perhaps with the wisdom of hindsight that there were many practical solutions to the logistical difficulties which were undoubtedly presented by the course that Fayleigh proposed to take in this respect at the arbitration A sample of the documents could have been identified which best illustrated Fayleigh s contentions A witness statement might have been required from Mr O Brien or any other witness setting out exactly what it was said the documents showed and which would then allow Plazaway s witnesses to address this specific contention But it is hard to see that it was a satisfactory solution for the arbitrator to read all of the documents themselves without reference either to the colour coding or to any evidence as to what it was said that

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  • accident or serious incident to which these Regulations apply shall be the subject of an investigation Emphasis added 11 In Regulation 3 accident is defined as follows any occurrence associated with the operation of an aircraft which takes place from the time any person boards the aircraft with the intention of flight until such time as all persons have disembarked in which a a person is fatally or seriously injured as a result of i being in or on the aircraft ii direct contact with any part of the aircraft including a part which has become detached from the aircraft or iii direct exposure to jet blast except when the injuries are from natural causes self inflicted or inflicted by other persons or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew emphasis added 12 In the same provision Regulation 3 serious incident is defined as an incident involving circumstances indicating that an accident nearly occurred the term incident is in turn defined as an occurrence other than an accident associated with the operation of an aircraft which affects or is likely to threaten the safety of the aircraft or its operation 13 As this appeal relates to an application for leave to seek judicial review and is thus as already noted based on a test of arguability I am prepared to accept that there may be a case on the facts that there was a possibility or likelihood that an accident similar to that which unfortunately befell Mr Ralph could have occurred at a time when passengers had boarded a plane Even if however it might be possible to suggest that there was some type of latent threat to a boarded plane arising in that way it is important to note that a serious incident is not defined by reference to a threat but rather by reference to an accident which nearly occurred The non exhaustive examples of serious incidents given in the first schedule to the regulations are specified as operating as a guide to the definition of serious incident The type of events described involve near misses or the like They all involve an event where an accident i e an occurrence on a boarded aircraft as a result of which a fatality or serious injury occurs is just averted Those examples are entirely consistent with the definition of a serious incident as involving an accident which nearly happened The fact even if it were to transpire to be the case that there was a latent problem with the de icer which might possibly have created a relevant occurrence in relation to a boarded aircraft falls a long way short of an occurrence which led to an accident nearly occurring The Basis for this Decision 14 For reasons which will now be explained and irrespective of legal standing and promptness issues I would nonetheless dismiss this appeal on its merits 15 The applicant appellant says that the second named respondent the Irish Aviation Authority erred in law in allowing the Health Safety Authority to have sole jurisdiction over the investigation He asserts that the only reason that the aircraft was being de iced was an intrinsic element of this particular intended flight But does this arguably give rise to an arguable case This application does not concern a near miss or at worst a possible air incident The plane was not operational The pre spray tactile inspection of the upper surface of this high winged aircraft during the pre flight inspection did not equate to and could not be characterised as the aircraft being boarded with the intention of flight nor did it relate to a near miss 16 This was not therefore an air accident which came within the remit of either respondent Nor was it to use the relevant terminology an incident or occurrence associated with the operation of the aircraft which affected or was likely to threaten the safety of the aircraft or its passengers or crew We are not dealing with a near miss The very remote possibility of such an incident becoming a threat to passengers is to my mind too distant to bring the application within the grounds of arguability This was therefore an industrial or work accident which came within the remit of the Health Safety Authority and not the Air Accident Investigation Unit or the Irish Aviation Authority The use for a number of years of the de icing rig in the vicinity of an operational aircraft cannot be regarded as being a serious air incident or near miss within the meaning of the first schedule of the Regulations 17 Mr Carroll asserts that the granting of approval by the Irish Aviation Authority to an aircraft maintenance organisation such as S R Technics is predicated on there being a fiduciary duty owed by the accountable manager of an aircraft maintenance organisation to the Irish Aviation Authority He contends that the validity of this relationship would be dependent on such accountable manager reporting aviation issues such as aircraft passenger endangerment to the Authority in compliance with approval and procedures Mr Carroll asserts that there was a failure on the part of the Irish Aviation Authority to exercise oversight in regard to the granting of an approval certificate to S R Technics This is too far fetched There is no prima facie duty giving rise to judicial review Having regard to G v DPP 1994 1 I R 374 the application is unstateable 18 Some 4 years elapsed between the time of the accident and the application for leave to bring judicial review proceedings Mr Carroll says that full or fuller information about the occurrence only came to his attention at Mr Ralph s inquest in 2012 However this delay although a salient consideration is not the basis of my finding While my decision is on the merits the elapse of time cannot be ruled out of the equation having regard to the time limits in Order 84 Rules of the Superior Courts Whether or not further information regarding the accident came to light at the Coroner s inquest into Mr Ralph s death does not seem to me relevant to the question of the duty per se If there was a statutory duty on the respondents that duty if there was one arose in 2008 not in 2012 19 It is not in dispute that the Health Safety Authority conducted an investigation into the incident The statutory remit of both respondents did not require that this accident fall for investigation by them There was no mandatory duty on either in the circumstances outlined I reiterate that the applicant was not in a position to inform the Court as to whether or not relatives of the late Mr Ralph had themselves brought civil proceedings There is no indication that family members of the late Mr Ralph are associated or aware of this application for judicial review We have not been informed as to the findings of the Health Safety Report I confine myself to holding that test c in G v DPP 1994 1 I R 374 at p 378 is not met In fact there are real question marks over each of the tests a to e at p 377 to 378 20 In the course of his application Mr Carroll informed the Court that he now devotes much of his time to pursuing the interests of a number of former S R Technics employees in a claim which is being mounted for entitlements arising from their former employment The Court was informed that Mr Carroll had also initiated a further connected judicial review to this question before Ms Justice Faherty in the High Court The Court has been furnished with a copy of an order dated 12th January 2015 made by the High Court Faherty J in judicial proceedings Record No 2014 No 480 JR in which Mr Carroll is applicant and Air Accident Investigation Unit Ireland and the Attorney General are respondents and in which Mr Carroll sought an order of mandamus that the Air Accident Investigation Unit fulfil its statutory duty and investigate under the classification serious incident the Unsafe Situation that existed in the Airspace of the Ukraine prior to the aircraft accident of 17th July 2014 The High Court ordered that the application stand refused Mr Carroll informed the Court that he had not appealed against that refusal 21 For this last reason I do not think that Mr Carroll can be considered to be a vexatious litigant Had he appealed that order the position might well have been different However it is important that litigants who are seen to pursue litigation on a repeated and needless basis be aware of what is called an Isaac Wunder order which can restrain the bringing of repeated and vexatious proceedings I make no comment whatsoever on any claim before any Rights Commissioner or any other forum or Tribunal brought by employees of S R Technics That is a separate matter 22 This application for leave to seek judicial review does not reach the appropriate threshold as set out by Finlay C J I would affirm the order of the learned High Court judge refusing leave and dismiss the appeal THE SUPREME COURT Appeal No 476 JR 2012 Clarke J MacMenamin J Laffoy J BETWEEN KEVIN CARROLL APPLICANT APPELLANT AND AIR ACCIDENT INVESTIGATION UNIT THE IRISH AVIATION AUTHORITY THE ATTORNEY GENERAL AND IRELAND RESPONDENTS AND AN GARDA SIOCHANA THE MINISTER THE DEPARTMENT OF TRANSORT TOURISM AND SPORT THE HEALTH SAFETY AUTHORITY THE MINISTER OF THE DEPARTMENT OF JOBS ENTERPRISE AND INNOVATION THE DUBLIN CITY CORONER DR BRIAN FARRELL Judgment of Mr Justice John MacMenamin dated the 26th day of November 2015 1 On the 24th October 2012 Peart J in the High Court refused the appellant s application for leave to bring judicial review proceedings The appellant who is a litigant in person now appeals that order 2 The appellant Kevin Carroll Mr Carroll was formerly an employee of S R Technics He worked as an aircraft maintenance engineer He was employed at Dublin Airport where S R Technics carried on business At the time of the incident at the centre of this appeal Mr Carroll had been working with S R Technics for less than 5 months 3 On the 19th March 2008 a fatal accident befell the late David Ralph who was a co employee of the applicant appellant Mr Carroll did not know Mr Ralph nor had he ever spoken to him Mr Carroll was concerned about what had caused the accident This was to a degree understandable as he worked in the same location as Mr Ralph and was or might have been expected to use the same equipment He contends in this appeal that the accident should have been investigated by the two respondents named in this appeal Ultimately four years later he decided to bring judicial review proceedings 4 In essence Mr Carroll contends that each or both of the respondents should have carried out an investigation of the accident He does not now say that what occurred was an aviation event which required to be investigated in itself but rather that what had occurred on the day indicated a potential threat to passengers in the future that to put it colloquially it was an accident waiting to happen in that the procedure that caused the accident could have occurred when passengers were boarding the plane and was therefore a threat to passengers Consequently he contends that what occurred could have been a serious incident meriting investigation by the two named respondents 5 The High Court report furnished to this Court by Peart J described the circumstances of the accident in more detail The event occurred when the deceased David Ralph was in a basket at the end of a hoist which was placed adjacent to an empty City Jet high wing aircraft at Dublin Airport The aircraft was due for operation later in the morning The late Mr Ralph was engaged in a de icing procedure prior to passengers boarding the aircraft The aircraft was therefore non operational at the time It is not said any crew were on board There were no passengers on board nor were passengers or crew in the process of boarding disembarking or in the vicinity of the stationary aircraft It is not said the engines were running The accident was caused by a pin shearing This pin held the basket in place at the top of the hoist The fracture or shearing caused the basket to fall to the ground as a result of which Mr Ralph sustained his injuries There are questions raised as to whether the pin was replaced and whether the hoist was maintained in good condition The Court has not been informed whether those issues were addressed in the Health Safety Report or whether there were any civil proceedings against the employer where this issue was raised or dealt with These questions are not in themselves relevant to this judicial review application for leave where what is in issue is essentially mandamus i e compliance with statutory duty 6 In G v DPP 1994 1 I R 374 Finlay C J this Court set out the tests which should be applied in considering whether leave for judicial review should be granted He held at p 377 to 378 that for leave to be granted An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters a That he has a sufficient interest in the matter to which the application relates to comply with rule 20 4 b That the facts averred in the affidavit would be sufficient if proved to support a stateable ground for the form of relief sought by way of judicial review c That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks d That the application has been made promptly and in any event within the three months or six months time limits provided for in Order 84 Rule 21 1 or that the Court is satisfied that there is a good reason for extending the time limit e That the only effective remedy on the facts established by the applicant which the applicant could obtain would be an order by way of judicial review or if there be an alternative remedy that the application by way of judicial review is on all the facts of the case a more appropriate method of procedure 7 There is no doubt that Mr Carroll has raised a concern about the accident But is this concern sufficient in legal terms to establish he has sufficient legal interest to give him standing to bring the application He was not involved in the event He does not apparently know the Ralph family nor have any connection with them He does not have any official position which would give him legal standing to bring judicial review proceedings Cahill v Sutton 1980 I R 269 With the exception of one factor identified later he is effectively in law a stranger to the case 8 The kernel of this application for leave concerns in law whether this was an accident involving an operational aircraft with passengers or crew on board 9 Mr Carroll sought leave to obtain an order of mandamus directing the first named respondent that is the Air Accident Investigation Unit to investigate the occurrence pursuant to S I 460 of 2009 This statutory instrument was in fact a successor to S I 205 of 1997 and it is S I 205 of 1997 which was operative on the 19th March 2008 being the date of the fatality This latter is therefore the operative statutory instrument 10 Regulation 10 1 of S I 205 of 1997 the Air Navigation Notification Investigation of Accident and Incidents Regulations 1997 provides that Every accident or serious incident to which these Regulations apply shall be the subject of an investigation Emphasis added 11 In Regulation 3 accident is defined as follows any occurrence associated with the operation of an aircraft which takes place from the time any person boards the aircraft with the intention of flight until such time as all persons have disembarked in which a a person is fatally or seriously injured as a result of i being in or on the aircraft ii direct contact with any part of the aircraft including a part which has become detached from the aircraft or iii direct exposure to jet blast except when the injuries are from natural causes self inflicted or inflicted by other persons or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew emphasis added 12 In the same provision Regulation 3 serious incident is defined as an incident involving circumstances indicating that an accident nearly occurred the term incident is in turn defined as an occurrence other than an accident associated with the operation of an aircraft which affects or is likely to threaten the safety of the aircraft or its operation 13 As this appeal relates to an application for leave to seek judicial review and is thus as already noted based on a test of arguability I am prepared to accept that there may be a case on the facts that there was a possibility or likelihood that an accident similar to that which unfortunately befell Mr Ralph could have occurred at a time when passengers had boarded a plane Even if however it might be possible to suggest that there was some type of latent threat to a boarded plane arising in that way it is important to note that a serious incident is not defined by reference to a threat

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  • May 2010 be reinstated and a vague claim for further relief 10 This appeal was not pursued in any timely way by the husband Nor apparently did he initiate Circuit Court proceedings as the High Court had directed The matter was allowed by him to lie for 4 years this despite the alleged seriousness of the dangers to the children which he claims motivated him With the changes to the appellate jurisdiction from orders of the High Court under Article 34 of the Constitution the Chief Justice has required all cases which have not progressed to appear on a list and for the parties thereto to offer an explanation as to why appeals were not progressing This case appeared on the list on 1st May 2015 An order was made that unless the matter were progressed through the filing of the appropriate papers the case should be struck out Papers were then filed by JMH and that case was given a date for hearing November 24th 2015 This judgment results from that hearing In June of 2015 another case brought by the husband JMH against KH came on for hearing by way of an appeal to this Court After hearing both parties again unrepresented that particular case was dismissed 11 From the time of the order of MacMenamin J of 10th May 2011 a number of developments have occurred The wife initiated divorce proceedings against her husband in the Circuit Court in Munster The husband claims to have been unaware of those proceedings and acted before this Court and more seriously elsewhere as if this was an unforeseeable development It is understood that the Circuit Court granted a decree of divorce under the relevant legislation enabling Article 41 3 2º of the Constitution on about 3rd June 2014 The wife appearing on this appeal could not have been expected to bring the relevant order with her since it did not on the face of it concern the husband s contentions as ventilated in his notice of appeal and accompanying affidavit The wife then wished to get married to her new partner On 5th May 2015 this happened It was not such a happy day however as the husband accepts that he turned up at the venue where that marriage was to be celebrated and denounced the legality of proceedings His excuse for so acting was that not having either turned up to or appealed the divorce proceedings before the Circuit Court he had he claimed become aware of the divorce in consequence of an appearance before this Court or otherwise the sequence being unclear He also claims to have sought before the High Court thereafter an extension of time within which to appeal the divorce decree No order of the High Court was produced by the husband in that regard The claimed logic behind the husband s actions in disrupting the marriage was that as he had according to himself appealed the decree of divorce it was then invalid No order was produced to this Court however indicating that any stay had been put by the High Court on the order of the Circuit Court divorcing the parties Nor was any order produced to this Court from the High Court either indicating that there had been an appeal or that an extension of time to appeal had been granted or that he either sought on appeal or was granted any stay on the decree of divorce in the Circuit Court 12 The husband complains that events since the order of MacMenamin J of 10th May 2011 have borne out the fears which he expressed before the High Court in both 2010 and 2011 On analysis however the only matter in respect of which any comment might be made is that one of the children of the marriage lost the final digit of their thumb in consequence of an accident at the family home formerly lived in by the husband and wife in consequence of the operation of a log splitting machine What this indicates is that an accident occurred and nothing more The constant warfare between the parties which this Court is satisfied in consequence of the timing and sequence of events is being maintained by the husband up to and into this appeal is of much greater immediate and present threat to the well being of the children of the marriage One of those children is now aged 21 and living abroad Some form of property settlement has also been reached in relation to the former family home but the details of this are only vague Despite that on this appeal the husband JMH referred to it as my home 13 What has emerged clearly on this appeal is that the former wife KH who is the respondent wishes to live an ordinary life free from the continual strain of court appearances The former husband JMH who is the appellant has on the other hand so abused the processes of the court that his purpose in engaging in litigation has not emerged as being for the benefit of the children of his former marriage Instead his litigation activities have emerged as a consequence of an obsessive concentration on wrong that is more apparent than real The circumstances under which validly married couple might face a late appeal claiming that the divorce of one of them was improperly granted are perhaps absent fraud on the system by both or one or other of them impossible to imagine No decision is now to be made in that regard 14 This appeal has been vexatious Had the husband initiated Circuit Court proceedings in accordance with the order of MacMenamin J of 10th May 2011 none of the issues relating to child care to his alleged unawareness of the divorce and the regrettable disruption of the marriage ceremony would have arisen The timeline of this case indicates the utter futility of seeking orders from this Court in circumstances where events have moved on Nor would it be reasonably possible to consider that what is involved on this appeal was in any way to any way genuine in circumstances where the imminent striking out of the appeal suddenly made issues which had not been pursued before any court a matter of extreme importance and urgency to the husband JMH The former wife is entitled to be protected from further nonsensical proceedings There is a right to litigate but this is a right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law see Tuohy v Courtney 1994 3 IR 1 at 45 There could be no right to use the court process for illegitimate reasons Court proceedings are stressful time consuming and expensive The courts have an inherent power to protect themselves both for the benefit of the fostering of scarce resources and for the protection of litigants against obviously wasteful and abusive proceedings In Riordan v Ireland 2001 3 IR 365 Keane CJ explained that ultimately an order can be made against a litigant restraining that party from initiating any proceedings without leave At page 370 he explained It is however the case that there is vested in this court as there is in the High Court an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious The court is bound to uphold the rights of other citizens including the right to be protected from unnecessary harassment and expense rights which are enjoyed by the holders of public offices as well as by private citizens This court would be failing in its duty as would the High Court if it allowed its processes to be repeatedly invoked in order to reopen issues already determined what pursue groundless and vexatious litigation 15 Given that final orders are much less common in family proceedings than in other forms of litigation the form of order restraining future litigation arising from the decisions of the former Supreme Court of Justice in Wunder v Irish Hospitals Trust 1940 Ltd Supreme Court 24 January 1967 will necessarily be rare This case has however crossed that boundary 16 There will be an order dismissing this appeal There will be a further order staying all proceedings by JMH the former husband in this case and the appellant in relation to any family law issue which concerns KH his former wife or the children of their marriage The possibility of a genuine issue arising cannot be totally ruled out Furthermore the right to litigate cannot be left extinguished and without the possibility of suspending such an order Consequently JMH may by application grounded on a full affidavit explaining the necessity for any further litigation apply to the President of the relevant court or to any judge nominated by him for such limited relief as may be proven on that application to be necessary and not previously litigated This judgment and order should be brought to the attention of the judge by JMH There will be no need for KH to attend unless she wishes to An Chúirt Uachtarach The Supreme Court Denham CJ Dunne J Charleton J Record number 2009 35M Appeal number 207 2011 Between J M H Husband Applicant Appellant and K H Wife Respondent Respondent and S McC Notice Party Judgment of Mr Justice Charleton delivered on Thursday the 26th day of November 2015 1 This appeal comes before the Court in circumstances where it is the 83rd occasion when a court process has been accessed in relation to the breakup of the marriage of the parties JMH the husband and appellant and KH the wife and respondent and questions relating to the custody of their three children This has become vexatious and insupportable Immediately in focus is a notice of appeal by the husband dated 16th May 2011 against an order of MacMenamin J made in the High Court of 11th May 2011 Before turning to that notice of appeal and the judgement of the High Court some background to the case is helpful 2 JMH and KH were married and there are three children of that marriage who will be called for these purposes D S and K now aged respectively 21 years 16 years and 15 years old There is another child of the wife who was born later The notice party is the father He has not taken part in this appeal or in any relevant hearing before the High Court The marriage of JMH and KH split up in 2001 The normally unhappy circumstance of family breakdown has been compounded by difficult circumstances but this is not been made easier by a pervasive suspicion on the part of the husband in relation to the new partner of his former wife the fact of her divorce from him and his applying to the High Court outside of time for an order extending the time within which to appeal that decree 3 In circumstances where the parties had at that stage already been at the least some 8 times before the Circuit Court and 20 times before the District Court the husband initiated a case in the High Court by special summons dated 22nd of May 2009 Those proceedings bore the record number 2009 11600P The order of MacMenamin J of 11th May 2010 followed on a comprehensive hearing of the circumstances It would appear that the husband was not represented but the wife was represented by a solicitor Affidavits were filed in the ordinary way Concerns from the husband about the safety of his children and the dangers that might be posed by the new partner of the wife and his wider family were reflected in certain orders made and in the recital of particular undertakings to the High Court on that occasion These included an undertaking by the wife KH not to have that new partner in what was previously the family home of the husband and wife and to ensure that a relative of a new partner would be discouraged from driving about the children of the marriage Reference was also made in the order to access to another child who was not the child of JMH and KH It was ordered by the High Court that The new partner be restrained from attending in or about the H family home and is further restrained from having any contact whatsoever with the H children that JMH husband and KH wife be restrained from informing the children about matters transpiring between them 4 The High Court further directed that divorce proceedings be issued in the Circuit Court in the Munster area and that the solicitor for the wife should write to Accord in order to request the services of a mediator to act between the parties and any other issues to be dealt with through the mediator Accord is a professional mediation service The reference in the order to the husband and wife keeping silent about the matters at issue between them refers to unsavoury issues which whether true or not would be unsuitable for young ears Divorce proceedings were issued in the Circuit but much later The initiation of divorce proceedings could not come as a surprise to the husband That order was endorsed with the penal endorsement and was served by the husband on the wife on 12th July 2010 5 Within a year a new set of proceedings bearing the record number above were initiated by the husband in the High Court A notice of motion dated 13th April 2011 sought full custody and control of our children attachment and committal of the wife for contempt of the previous High Court order an order that the new partner of the wife should permanently stay away from the husband and the children a reference of the case to social services because the children were alleged to be at high risk and danger presently until they are removed from the situation with immediate effect a similar reference to the gardaí amendment of the previous High Court order to include the direction to the wife not to conspire with another to cause JMH harm and further and other relief Two days later another motion was issued by the husband specifically seeking that the wife be heard and to show cause as to why you should not be attached and committed to jail for failure to abide by the previous order 6 On this motion affidavits were exchanged between the parties The husband alleged that the new partner of the wife KH was unsavoury and that his cousins had engaged in various criminal activities and consequently that the children were at risk The wife replied detailing that she had her new partner within the house at her request because on numerous occasions the husband has followed me around my locality at any time of day and night She also said that she was not advised as to the consequences of breaking the High Court order in question Exhibited in her affidavit was a note from the local Garda station which indicated that a complaint had been made of some kind and also a medical report stating that she was in good physical and mental health and that the doctor had seen nothing in her behaviour or in the care of her children which would lead me to suspect any problem The circumstances are somewhat confused because of the fact that by this stage both husband and wife were representing themselves The contempt motion apparently came on in April 2011 before Irvine J who knowing that MacMenamin J had made the order in respect of which committal was sought and had previously heard the parties referred the matter to him The case came on for hearing on the 10th May 2011 The High Court decision from which this is an appeal altered the existing situation MacMenamin J ordered 1 These proceedings herein be and are hereby remitted to the Circuit Court on the matter to be further prosecuted before that Court within one week of the date of this Order 2 The Order made by this Court hearing on the 11th day of May 2010 do stand discharged 3 Any person or persons having notice of the making of this Order be restrained from watching the setting placing in fear any of the parties herein 7 In his judgement of that day MacMenamin J recited the terms of the prior order He noted that the proceedings had been protracted though he declined from making any finding as to who was to blame despite stating that he had strong suspicions His previous order the judge said had been designed to see whether the parties divorcing each other and accessing professional mediation might in some way lessen the animosity that fuelled the proceedings MacMenamin J characterised the case as lacking a concern for the children with a focus instead on the issues between the parties He made it perfectly clear that any further applications should remain in the same jurisdiction and should not engage the trouble and expense of High Court proceedings I am therefore ordering that this matter be remitted to the Circuit Court I am ordering that all and any proceedings in this case should be brought to the Circuit Court I am ordering that no proceedings or no further step in these proceedings will be taken in the High Court without application for leave brought to me Such application would have be brought by way of affidavit and notice of motion and such affidavit and notice of motion will have to indicate why the matter cannot be dealt with in the Circuit Court rather than in the High Court Thus the intent behind the orders is that matters will be

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  • therefore was predicated on a specific set of accomplished facts The evidence to be thus adduced could not be effectively challenged in cross examination 14 While counsel for the appellant presented this appeal with great force it seems to me that the case made is unconvincing for a number of reasons What arises here is purely a hypothesis regarding application of the rules of evidence in the U K There is no factual material in this appeal that the statutory provisions in question which are simply evidential rules are likely to be relied on in a trial The analogy with Borges is inapposite for this reason alone Next on a perusal of the United Kingdom provisions which can hardly be characterised as a fundamental defect in the justice system which amounts to a deprivation of a guaranteed right proof by evidence of conviction of another as set out in the United Kingdom statute is not conclusive proof of the guilt of an accused but rather is evidence only that the other person has committed the offence unless the contrary is proved s 74 2 PACE 1984 The respondent has not adduced evidence that he would be left without remedy or asserted that no procedural checks and balances exist in the United Kingdom in order to ensure that fairness is preserved in a trial there 15 The unclear and contingent nature of the case advanced by the appellant is in fact rather highlighted in the affidavit of James Morris referred to earlier It is not suggested the prosecution case against the appellant hinges upon or is likely to hinge upon ss 74 and 75 PACE 1984 either alone or in conjunction with some other statutory provisions Mr Morris actually identifies some 16 points of potential evidence which might be used in an intended prosecution These may include telephone evidence and analysis relating to all alleged co conspirators transcripts of recorded telephone calls phone company evidence and calls cell site analysis showing the location of mobile phones used by alleged perpetrators in respect of phone masts close to targeted premises CCTV footage either of cars in locations where the pipe bombs were detonated forensic evidence in respect of the pipe bombs themselves eye witness evidence and automatic number plate recognition of cars involved in the offence In addition it would appear that ballistics firearms explosive evidence would be adduced together with eye witness statements and surveillance evidence It is by no means clear then that the prosecution authorities will inevitably or are likely to rely on evidence adduced by reference to ss 74 and 75 of the U K Act Section 4A of the 2003 Act 16 Section 4A of the Act of 2003 contains a presumption that an issuing state will comply with the requirements of the Framework Decision unless the contrary is shown Counsel for the appellant submits the trial judge erred in placing such reliance 17 However as the learned High Court judge pointed out the respondent s evidence here was again silent as to any possible safeguards counterbalances or remedies that might exist under United Kingdom law to guard against any potential unfairness and injustice in the operation of the Act of 1984 were it to be deployed Not only would this Court not be justified in inferring that no such safeguards exist in fact it is bound by a presumption in the other direction which derives from s 4A of the Act of 2003 In the absence of some controverting evidence therefore there is nothing tending to rebut the presumption under s 4A of the Act of 2003 18 These various observations however must be seen as prefatory to two decisions which are in fact entirely determinative on the question of extra territorial effect of Article 38 The Judgment of this Court in Minister for Justice v Brennan 19 In Minister for Justice Equality Law Reform v Brennan 2007 3 I R 732 at p 743 Murray C J observed that if the constitutional guarantees in respect of domestic criminal processes were to be applied to foreign criminal processes in the context of extradition then it would be all but inevitable that surrender would have to be refused in most cases He expressed himself in this way at par 37 p 743 37 The effect of such an argument is that an order for surrender under the Act of 2003 and indeed any order for extradition ought to be refused if the manner in which a trial in the requesting state including the manner in which a penal sanction is imposed does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country That can hardly have been the intention of the Oireachtas when it adopted s 37 1 of the Act of 2003 since it would inevitably have the effect of ensuring that most requests for surrender or extradition would have to be refused And indeed if that were the intent of the Framework Decision which the Act of 2003 implements and other countries applied such a test from their own perspective few if any would extradite to this country 20 He continued at par 38 p 743 38 Indeed it may be said that generally extradition has always been subject to a proviso that an order for extradition as with any order should not be made if it would constitute a contravention of a provision of the Constitution I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution Nottinghamshire County Council v B K 21 In Nottinghamshire County Council v B K Another 2011 IESC 48 O Donnell J with whom Denham C J Fennelly J and Macken J agreed Murray J concurring in part again explained that the general range and scope of the Constitution and the rights derived therefrom are with one important exception to be seen as operating intra territorially The Court held that the Constitution does not in general attribute legal significance to events occurring abroad As O Donnell J observed in the context of an application under the Hague Convention on Child Abduction The true question for an Irish Court is whether what is done within this jurisdiction can be said to be contrary to the Constitution This is why Article 20 of the Hague Convention can be seen to precisely focus attention on the issue That is whether the return and not the adoption would itself be a breach of the Irish Constitution para 61 p 56 He pointed out it was clear that the Constitution expects the legal systems of friendly nations will differ from that of Ireland para 66 p 58 Emphasis added The symmetry in reasoning between Brennan and Nottinghamshire County Council is clear 22 There is no extant authority therefore which provides support for the proposition that Article 38 should operate in an extra territorial fashion What is at stake rather is whether Ireland should surrender the applicant and if such surrender accords with constitutional principles I would emphasise however that if there is a fundamental defect in the legal system of a requesting state different considerations may well apply Differences Between Legal Systems 23 In Brennan 2007 3 I R 732 Murray C J distinguished between two scenarios at para 39 at p 743 744 first that The manner procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions The checks and balances in national systems may vary even though they may have the same objective such as ensuring a fair trial There may be few if any legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non minor offence Rules of evidence may differ Emphasis added It is clear then that from this final quotation differences in the rules of evidence are insufficient to raise a question of refusal to surrender An Exception Fundamental Defects in a Foreign Justice System 24 Entirely different considerations arise if it can be shown that there is a fundamental defect in the requesting state s system of justice Murray C J contrasted the position in these terms 2007 3 I R 732 at p 744 40 That is not by any means to say that a court in considering an application for surrender has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting state where a refusal of an application for surrender may be necessary to protect such rights It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply even if constitutionally guaranteed in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s 37 2 of the Act Emphasis added Both Brennan and Nottinghamshire County Council are authority therefore for the proposition that absent some matter which is fundamental to the scheme and order of rights ordained by the Constitution or egregious circumstances such as a clearly established and fundamental defect or defects in the justice system of a requesting state the range and focus of Article 38 must be within the State and not outside it The Court is presented here with what at is height can only be characterised as a different rules of evidence case but no more 25 I would therefore summarise matters this way First the case advanced by the appellant is hypothetical in that its actual or likely impact on the respondent is unclear and certainly not capable of being characterised as a defect in the system of justice of the requesting state Second even if hypothetically ss 74 and 75 P A C E 1984 are not in accordance with the values found in Article 38 it is immaterial if the appellant cannot show that what would be at issue would be or is likely to be an egregious departure amounting to a denial of fundamental or human rights per Murray C J in Brennan 2007 3 I R 732 at p 744 par 40 There would have to be significantly more a real and substantive defect in the system of justice where fundamental rights were likely to be placed at risk or actually denied As Murray C J pointed out in Brennan rules of evidence may differ between states and that alone does not at all lead to the necessary conclusion that there is a breach of fundamental rights in the requesting state Finally and again as held in Brennan and Nottinghamshire County Council the reach of Article 38 save in exceptional circumstances goes no further than the boundaries of the State There is nothing in Article 38 to suggest anything beyond that What is in question then is the lawfulness of the surrender of the appellant in this jurisdiction I would therefore answer the first question in the negative The Second Question 26 The second closely associated question is predicated on certain observations made by Walsh J in Ellis v O Dea 1989 I R 530 Ellis v O Dea 1989 1 I R 530 27 Ellis was arrested on foot of two warrants issued by an English magistrate endorsed for execution by a Deputy Commissioner of An Garda Siochana under the Extradition Act of 1965 Both warrants contained a recital that information on oath had been put before the English magistrate to the effect that the applicant had committed the offence of which particulars were given On his arrest the applicant was brought before the second respondent a justice of the District Court English solicitors were instructed on behalf of the applicant to request from the English Crown Prosecution Service copies of the sworn information referred to in the warrants and on which the warrants were grounded No reply was received to that request On the applicant s application by way of judicial review for an order prohibiting the second respondent a District judge from proceeding with an extradition hearing until such time as the applicant was provided with a true copy of the information grounding the warrants this Court held that the District Court had an undoubted jurisdiction to protect the constitutional rights of a person appearing before it by declining to order the extradition of that person to a jurisdiction where he could be exposed to practices or procedures amounting to an infringement of his right to fair and just procedures 1989 1 I R 530 at 531 and 537 28 The Court Finlay C J Walsh and McCarthy JJ also held that the Extradition Act of 1965 did not provide that the sworn information on which a warrant was grounded should be a necessary proof in extradition proceedings and that although there might be cases in which such information ought to be made available there was no reason in that case to require that it be proven in evidence 1989 1 I R 530 at 531 Finally this Court held that the State authorities were not obliged to furnish the applicant s legal advisors with sworn informations so as to assist them in testing the validity of warrants which were presumed by statute to have been duly issued 29 This recital of the essential facts in Ellis is necessary I think in that it makes clear that certain observations made by Walsh J to which reference is made below are to be seen in the context of the Extradition Act 1965 and not in connection with the Act of 2003 These observations were obiter They are not ad rem in that they only peripherally touch on the issues which arise here The protection identified in the Framework Decision and in the Act of 2003 both explicit and implicit are quite extensive Further insofar as concerns a European Arrest Warrant those observations must now been seen through the prism of Murray C J s very clear statements contained in Brennan to which reference has been made earlier The extent to which such observations might be relevant in another scenario does not arise in this appeal 30 In Ellis Walsh J criticised what he characterised as dubious a policy apparently then on occasion adopted by U K prosecutors of laying charges of conspiracy accompanied by a charge relating to the substantive offence He opined that the special rules of evidence which apply to conspiracy had demonstrated that it was not always desirable in the interests of justice to lay such a charge if for example an innocent person might be convicted on admissions made by a co accused 31 But even on first impression the context of those dicta differs very significantly from what is in question here it is not claimed in this appeal that reliance will or is likely to be placed on ss 74 and 75 of the Act of 1984 in a trial there would appear to be substantial other evidence the trial context in which ss 74 and 75 of P A C E 1984 might be deployed differs significantly from the practise which Walsh J deprecated and the remarks were made in the context of the Extradition Act 1965 rather than the Act of 2003 which contains a range of provisions protective of rights Edwards J correctly comments in the judgment appealed MJ E v Brennan 2014 IEHC 321 at par 44 to the effect that the evidence that has been adduced does not begin to approach what would be required to establish that the apprehended adduction of evidence of a co conspirator s convictions at the respondent s trial in the event that he is surrendered would be so egregious unfair and unjust that it would never be allowed in this jurisdiction 32 This Court would not be justified either in inferring or presuming an absence of safeguards exist On the contrary we are bound by the presumption in the other direction that arises under s 4A of the Act of 2003 It is by no means a fait accompli that ss 74 and 75 of the Act will be deployed The evidence of Mr Morris went so far as to say only that It would certainly be open to the prosecution to make use of these provisions and that there is no reason to believe that they would not attempt to do so 33 Turning now to the terms of s 37 1 a of the Act of 2003 the Court would be entitled to refuse surrender on Article 6 grounds were it satisfied there were substantial grounds for believing there was a real risk that the respondent would be subjected to a flagrant denial of justice at his trial There is no such evidence to support the appellant s claim The matters in issue have been explored earlier No ECtHR jurisprudence on the point has been opened to us The facts in this case are very far from those which arose for example in Soering v U K Ser A No 161 1989 where the ECtHR held that the extradition of a German national to the United States to face charges of capital murder would violate Article 3 ECHR guarantees preventing inhuman and degrading treatment In the absence of other evidence to the contrary the Court must act on the presumption prevailing by virtue of s 4A of the Act of 2003 I would therefore also answer the second question in the negative and dismiss the appeal on this ground also THE SUPREME COURT Appeal No 287 2014 Denham C J Hardiman J O Donnell J MacMenamin J Laffoy J IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 BETWEEN THE MINISTER FOR JUSTICE EQUALITY APPLICANT RESPONDENT AND JASON BUCKLEY RESPONDENT APPELLANT Judgment of Mr Justice John MacMenamin dated the 26th day of November 2015 Points of Law 1 On the 27th May 2014 the High Court Edwards J ordered that the appellant be surrendered to the United Kingdom authorities on foot of an application under the European Arrest Warrant procedure On the 5th June 2014 the same judge certified two matters as being points of exceptional public importance pursuant to s 16 of the European Arrest Warrant Act 2003 These points were 1 Does the right to a fair trial guaranteed by Article 38 of the Constitution have application beyond the national territory Specifically is it permissible for a respondent to an application for surrender to raise an apprehended breach of Article 38 as an objection to surrender under s 37 of the European Arrest Warrant Act 2003 2 Having regard to the comments of Walsh J in Ellis v O Dea 1989 I R 530 and the evidential rules that apply to the prosecution of conspiracy in England would the surrender of the respondent amount to a breach of s 37 of the European Arrest Warrant Act 2003 Background 2 The appellant is the subject of a European Arrest Warrant dated the 12th August 2013 issued by a competent judicial authority in the United Kingdom The U K authorities seek his rendition for the purpose of prosecution for the single offence of conspiracy to cause explosions The nature of the offence is particularised in the European Arrest Warrant in the following way Jason Buckley between the 20th June 2012 and the 18th day of August 2012 unlawfully and maliciously conspired together with Thomas James Leslie Snr Jason Joseph William Toft Thomas Richard Leslie Jnr Kevin Proctor and Martin William Drewery and with others to cause by explosive devices explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom or Republic of Ireland contrary to s 3 1 a of the Explosive Substances Act 1883 3 The alleged offence is said to derive from a dispute between two persons involved in criminal activity in the Stoke on Trent area It is said these two persons enjoyed a business relationship There was then a falling out involving a dispute relating to a financial settlement It is said that one of the two persons took the view that the other might be amenable to pressure and allegedly embarked on a campaign of intimidation by the utilisation of explosive devices It is alleged that the appellant herein was complicit specifically in the design or manufacture of the pipe bombs said to have been used Other persons had already been convicted arising from the same incidents The Legal Procedure 4 The European Arrest Warrant was endorsed for execution in this jurisdiction on the 15th August 2013 The appellant was arrested and brought before the High Court where the matter was heard before Edwards J on the 28th May 2014 5 In the High Court the appellant opposed his surrender on foot of a single net point of objection set out in the following terms To surrender the respondent now the appellant to this appeal to the issuing State would be to expose him to practices or procedures which if exercised within this State would amount to infringements of his constitutional right to fair and just procedures The respondent submits that this arises in circumstances where the alleged offence he is required to answer in the issuing State is one of conspiracy The respondent submits that should he be surrendered to the issuing State for the purpose of trial on the charge of conspiracy he will be faced with the introduction of evidence which would be inadmissible and or would fall foul of the constitutional guarantees of fair procedures It is submitted that the respondent in facing such a charge would lose the protection of this jurisdiction to another where such protection would not be enjoyed by him 6 The evidential basis for this contention was laid out in an affidavit by a United Kingdom solicitor James Patrick Morris Mr Morris retained by the appellant s legal advisors described the law relating to conspiracy charges in the United Kingdom He identified certain rules of evidence and procedures laid down in statute form which may be applicable in the trial of persons charged with conspiracy It is said these raise constitutional issues in this jurisdiction such that the appellant should not be surrendered The U K Provisions in Question 7 Sections 74 and 75 of the United Kingdom Police Criminal Evidence Act 1984 PACE or the Act of 1984 provide as follows 74 Conviction as evidence of commission of offence 1 In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or any other member State or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving that that person committed that offence where evidence of his having done so is admissible whether or not any other evidence of his having committed that offence is given 2 In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom or any other member State or by a Service court outside the United Kingdom he shall be taken to have committed that offence unless the contrary is proved 3 In any proceedings where evidence is admissible of the fact that the accused has committed an offence if the accused is proved to have been convicted of the offence a by or before any court in the United Kingdom or any other member State or b by a Service court outside the United Kingdom he shall be taken to have committed that offence unless the contrary is proved 4 Nothing in this section shall prejudice a the admissibility in evidence of any conviction which would be admissible apart from this section or b the operation of any enactment whereby a conviction or a finding of fact in any proceedings is for the purposes of any other proceedings made conclusive evidence of any fact 75 Provisions supplementary to section 74 1 Where evidence that a person has been convicted of an offence is admissible by virtue of section 74 above then without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based a the contents of any document which is admissible as evidence of the conviction and b the contents of i the information complaint indictment or charge sheet on which the person in question was convicted or ii in the case of a conviction of an offence by a court in a member State other than the United Kingdom any document produced in relation to the proceedings for that offence which fulfils a purpose similar to any document or documents specified in sub paragraph i shall be admissible in evidence for that purpose 2 Where in any proceedings the contents of any document are admissible in evidence by virtue of subsection 1 above a copy of that document or of the material part of it purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown 3 Nothing in any of the following a Section 14 of the Powers of Criminal Courts Sentencing Act 2000 under which a conviction leading to probation or discharge is to be disregarded except as mentioned in that section aa section 187 of the Armed Forces Act 2006 which makes similar provision in respect of service convictions b section 247 of the Criminal Procedure Scotland Act 1995 which makes similar provision in respect of convictions on indictment in Scotland and c section 8 of the Probation Act Northern Ireland 1950 which corresponds to section 13 of the Powers of Criminal Courts Act 1973 or any legislation which is in force in Northern Ireland for the time being and corresponds to that section shall affect the operation of section 74 above and for the purposes of that section any order made by a court of summary jurisdiction in Scotland under section 182 or section 183 of the said Act of 1975 shall be treated as a conviction 4 Nothing in section 74 above shall be construed as rendering admissible in any proceedings evidence of any conviction other than a subsisting one Emphasis added The omission in s 74 3 signified thus is due to words repealed by the U K Criminal Justice Act 2003 The Appellant s Case 8 Counsel for the appellant contends that were the appellant to stand trial in the United Kingdom these emphasised provisions would enable the prosecution to adduce evidence of a convicted conspirator s conviction in the same matter He submits that if his client is surrendered to the United Kingdom there is a risk of denial of his rights pursuant to Article 38 of the Constitution It is said specifically that a trial which might allow the adducing of evidence of an alleged co conspirator s conviction potentially utilising ss 74 and 75 P A C E 1964 would infringe on the appellant s constitutional rights by reason of the fact that such a trial would not be in due course of law The case is made that the deployment in the prosecution case of an alleged co conspirator s testimony is procedurally questionable and does not accord with our precepts of a trial in due course of law Counsel submits that the scope of Article 38 is intended to give effect to this fundamental trial principle which should have application beyond the bounds of the national territory Counsel draws attention to the fact that our courts have on occasion recognised the entitlement of respondents to extradition proceedings to assert constitutional rights as a basis for resisting their surrender See for example evidence that a respondent likely to be ill treated if delivered out of the jurisdiction Finucane v McMahon 1990 ILRM evidence taken in violation of constitutional rights Larkin v O Dea 1995 2 I R inhumane prison conditions in a requesting state AG v PO C 2007 2 I R 421 9 This appeal must be decided on the evidence adduced It is not open to this Court to speculate on matters which are not placed in evidence On the provisions just quoted Mr Morris deposes only to the effect that the provisions highlighted as sections 74 and 75 Police Criminal Evidence Act 1984 would enable the prosecution to adduce evidence of the co conspirators sic convictions if Jason Buckley were to stand trial in the U K This would seem to be a case whereby it would certainly be open to the prosecution to make use of these provisions and that sic there is no reason to believe they would not attempt to do so It is said therefore that the provisions in question might be deployed to demonstrate that other persons committed the offence in question The principal objection which the respondent raises to his surrender and ultimate trial therefore is the prospect that the fact that evidence of others who were convicted of an offence in the same matter may be presented to the jury as admissible evidence that such other persons committed the offence thus compromising the appellant s presumption of innocence and the fairness of a trial 10 The question of context is essential in cases such as these No evidence has been adduced as to the context in which such evidence might be introduced at a trial This is simply not part of the case It is not said that an English trial court would be under a duty to admit such evidence No information is given as to what instructions might be given by a trial judge to a jury as to the circumstances in which such evidence might be admitted As indicated the evidence apparently would be to the fact that another person committed the offence How this might connect to the respondent is unclear No information is available as to how the law would be applied in ascertaining the purpose of any attempt to admit such evidence There is no indication as to whether or not the process involved ss 74 and 75 is generally used sparingly or frequently 11 On behalf of the appellant it is contended that the deployment of those provisions would be a denial of the respondent s right to hear evidence presented in the context of a trial where he should be in a position to contest all evidence by cross examination Counsel relies by analogy on the authority of Borges v The Fitness to Practice Committee of the Medical Council and the Medical Council 2004 1 I R 103 at p 113 par 26 where Keane C J observed that when a tribunal is enquiring into allegations of conduct which reflects on a person s good name or reputation basic fairness of procedure requires that he or she should be allowed to cross examine by counsel his accuser or accusers see also In Re Haughey 1971 1 I R 217 12 A consideration of the facts of Borges shows the limitations of this analogy Not the least significant of these was that this impugned procedure was to take place in this jurisdiction although obviously this was not an Article 38 case In Borges the complaint raised by the applicant was that the second named respondent that is The Medical Council of Ireland intended to conduct an enquiry before its own Fitness to Practice Committee The Medical Council contended that the complainants against the applicant doctor would not be called in evidence in the enquiry which was to be held in Ireland but instead their testimony was to be introduced by reference to a transcript of proceedings before the Professional Conduct Committee of the U K General Medical Council before which such complainants had actually testified It was also intended to adduce in evidence the findings of the U K Professional Conduct Committee and of the Privy Council in an appeal upholding that Committee s findings In Borges this Court held that such an enquiry could not lawfully be held here on the basis that the applicant would be deprived of his right to fair procedures Consequent on the course of action proposed and adopted by the Medical Council evidence would be adduced not by witnesses who could be cross examined but rather by reference to a transcript Clearly then the witnesses would not be susceptible to cross examination or challenge For this reason this Court held such a procedure breached the principles of fair procedures and held for the applicant doctor 13 Borges was not based on some hypothesis of what might possibly occur It was entirely clear that the enquiry had embarked upon and was to be based on this irregular and unjust procedure The complainants would not be called The case advanced by the applicant doctor therefore was predicated on a specific set of accomplished facts The evidence to be thus adduced could not be effectively challenged in cross examination 14 While counsel for the appellant presented this appeal with great force it seems to me that the case made is unconvincing for a number of reasons What arises here is purely a hypothesis regarding application of the rules of evidence in the U K There is no factual material in this appeal that the statutory provisions in question which are simply evidential rules are likely to be relied on in a trial The analogy with Borges is inapposite for this reason alone Next on a perusal of the United Kingdom provisions which can hardly be characterised as a fundamental defect in the justice system which amounts to a deprivation of a guaranteed right proof by evidence of conviction of another as set out in the United Kingdom statute is not conclusive proof of the guilt of an accused but rather is evidence only that the other person has committed the offence unless the contrary is proved s 74 2 PACE 1984 The respondent has not adduced evidence that he would be left without remedy or asserted that no procedural checks and balances exist in the United Kingdom in order to ensure that fairness is preserved in a trial there 15 The unclear and contingent nature of the case advanced by the appellant is in fact rather highlighted in the affidavit of James Morris referred to earlier It is not suggested the prosecution case against the appellant hinges upon or is likely to hinge upon ss 74 and 75 PACE 1984 either alone or in conjunction with some other statutory provisions Mr Morris actually identifies some 16 points of potential evidence which might be used in an intended prosecution These may include telephone evidence and analysis relating to all alleged co conspirators transcripts of recorded telephone calls phone company evidence and calls cell site analysis showing the location of mobile phones used by alleged perpetrators in respect of phone masts close to targeted

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  • grant probate to one or more of the executors named in the will of a deceased person lies with the High Court which may limit such grant in any way the court thinks fit The court also has the power to revoke cancel or recall any grant of probate 10 When a person dies as a matter of law the executors of the estate must act so as to distribute the assets in accordance with the will of the deceased as soon as is reasonably possible Of course some estates may be more complex than others perhaps setting up trusts or requiring the gathering in of property from more than one jurisdiction What constitutes a reasonable time for gathering in an estate and distributing it to those entitled under a will therefore depends upon the relevant circumstances Under s 62 1 of the Act of 1965 proceedings may not be brought against a personal representative for failure to distribute the estate within one year of the death of the deceased though the court may give leave to proceed over a different time frame Brady at para 10 30 comments The Succession Act thereby incorporates the long established rule that personal representatives have one year from the death of the deceased in which to administer the estate and beneficiaries under a will may not initiate action against the executors until the end of the so called executor s year There is nothing to prevent the personal representatives distributing the estate within the executor s year if they so choose and indeed failure to do so may leave them open to the charge that they have failed to administer the estate with due diligence This is particularly the case with regard to payment of the deceased s debts since failure to do so will invariably mean that interest on the debt grows and it may grow to a point where it threatens the interests of the beneficiaries 11 The bounden duty of an executor is to commence the process of the identification gathering in accounting for taxation purposes and proper distribution of the estate This must be done in a timely fashion The duties of executors are solemn and require the pursuit of such reasonable avenues of enquiry as may uncover property to the benefit of the estate No matter whether the executor was the late Damien White or is Edward White or the solicitor of the estate of Edward White acting as executor in relation to the estate of the late Kathleen White these weighty duties must be fulfilled and dispatched with expedition 12 While it may cause upset to be removed as an executor time is one of the primary factors to be looked at by the High Court where an application is made to remove an executor under s 62 of the Act of 1965 The law leans against delay in the distribution of estates the reason is that the unfortunate results so clearly identified by Brady are to be avoided In the discharge of its probate jurisdiction the High Court is bound by the Act of 1965 and will also be cognisant that efficiency in the administration of estates is to be encouraged 13 On the matter coming before Ó Neill J the executor s year had well passed In fact Kathleen White had been dead for over three years Edward White had a problem with the completion of the return to the Revenue Commissioners that is essential to the discharge of the duties of an executor This in turn related to the failed sale of the premises and the much lesser price eventually obtained on compulsory purchase by the local town authority in Bray Of itself the passing of that year in circumstances where the estate did not exhibit the complexities associated with wills that might set up an elaborate trust or otherwise cause undue complications both enabled the application to be made under the Act of 1965 and provided the High Court with the appropriate authority whereby without necessarily making any further judgement on the matter another executor should be substituted This could only happen through the removal of the executor who had taken up the administration of the estate 14 It is argued on this appeal by Edward White that this was incorrect To put it at its lowest however it has not been demonstrated that there has been an erroneous interpretation of the affidavit evidence in the High Court The appeal cannot therefore succeed on this point Further the High Court was well within the law in removing an executor once the executor s year had passed 15 As to the other point the grant of probate in the estate of Kathleen White is dated from the High Court probate registry as the 29th June 2011 It is in proper form This records the death of the deceased at Saint Colmcille s Hospital on about the 16th October 2007 annexes her will It continues LETTERS OF ADMINISTRATION of the said estate which devolves on and vests in the personal representative of the said deceased and which was so left unadministered with said Will annexed were granted at the Probate Office to ROSEMARY GANTLY of 5 address Solicitor the Attorney lawfully appointed of IMELDA BRACK now residing at address daughter of the deceased and as such one of the Residuary Legatees and Devisees named in the said Will limited for the use and benefit of the said IMELDA BRACK and until she shall apply for and obtain Administration with the said Will Annexed of the unadministered estate the said ROSEMARY GANTLY having been first sworn faithfully to administer same 16 The order later made in the High Court probate registry references the 14th October 2014 It refers to the death of Damien Martin White of an address in Bray and that he died on 25th May 2014 annexes that will and records that George White who predeceased him and Imelda Brack of an English address were named as executors The order is in proper form and states that it should be known that on that date LETTERS OF ADMINISTRATION with the said Will annexed of the estate which devolves on and vests in the personal representative of the said deceased were granted by the Court to ROSEMARY GANTLY of address Solicitor the Attorney lawfully appointed of the said IMELDA BRACK presently of address Limited for her use and benefit until she shall apply for and obtain Probate of the said Will the said ROSEMARY GANTLY having been first sworn faithfully to administer same 17 It is important also to record that the solicitor who at all times has acted with the utmost propriety was first sworn faithfully to administer the relevant estate Progress has been made on the estate in the sense that the order certifies that the Revenue Commissioners have been delivered of an affidavit which showed that the gross value of the estate of the late Kathleen White amounts to 511 080 and that the net value thereof amounts to 439 730 18 This therefore provides ample justification and basis for the affirmation of the High Court order or grant of an order by this Court as sought in the terms above recited substituting Rosemary Gantley as plaintiff in place of Damien White 19 Finally it might reasonably be commented that the litigation arising out of the estate of Kathleen White has the capacity to affect the diminution of the estate from the point of view of those who would otherwise benefit Even prior to the death of Kathleen White the prospect of the exercise of the option agreement by Pizzaro Developments Ltd for the substantial sum agreed was of the nature of such agreements and of limited liability companies uncertain In her will dated the 21st October 2005 she mentions specific percentages in relation to the distribution of the estate should that deal proceed She a clearly wise woman and exercising admirable common sense expressed her last wishes in terms of distribution of the proceeds i n the event of Pizzaro Developments Ltd exercising the option to purchase my property at Derrynane Ravenswell Road Bray County Wicklow under the option agreement already executed That event did not come to pass 20 It is not an uncommon experience especially in the last seven years for property transactions which had the apparent capacity to yield substantial revenues to have melted away in the light of the changed economic circumstances brought about by the collapse in property values This may be yet another such case Whether it is or is not the plain reality is that that deal has disappeared as indeed the late Kathleen White foresaw that it might 21 A substantial sum has been received for the purchase of the property however from the local authority in Bray which while perhaps around half of what otherwise might be promised had the property sector of the economy remained as buoyant as it was back when the will was made in 2005 needs to be utilised for the benefit of those who are entitled under her will to inherit namely her children or those benefiting through their inheritance Chasing an illusion would do nothing for those entitled under the will of the late Kathleen White An Chúirt Uachtarach The Supreme Court Denham CJ O Donnell J Charleton J Record number 2011 1752P Appeal number 284 2011 In the Estate of Kathleen White Deceased Between Damien White Plaintiff Respondent and Rosemary Gantly Administratrix de Bonis Non and Edward White Defendant Appellant Judgment of Mr Justice Charleton delivered on Monday the 16th day of November 2015 1 The late Kathleen White died testate on the 16th October 2007 In her will of the 21st October 2005 she named two of her children as the executors of her estate These are Edward White who is the defendant appellant and Damien White who is the plaintiff respondent Damien White died on 15th January 2014 Hence the title hereof The other beneficiaries were her other children 2 The most substantial asset in the estate of the late Kathleen White was a dwellinghouse Derrynane Ravenswell Road Bray in the County of Wicklow The precise circumstances surrounding the disposal of this asset are not a matter that can be considered on this appeal Nonetheless it informs the background as to how issues concerning the estate of the late Kathleen White came before the probate list in the High Court from which this is an appeal It appears that a company called Pizzaro Developments Ltd contracted to purchase that property for a sum that appears to be 1 000 000 A deposit in accordance with the contract may have been received by the solicitor acting for the vendor The sale however did not proceed It seems that the method of completing the contract would have been through an option agreement but this was never proceeded with Separately from that this main asset in the estate was later sold A notice to treat by way of compulsory purchase of the premises was served by Bray Town Council on the 15th March 2011 The issue of compensation was eventually settled on the 26th August 2013 and a sum of 510 000 together with costs was arrived at 3 It may naturally be regarded as disappointing that a sum of around 50 of the value offered for the property by Pizzaro Developments Ltd was achieved through later compulsory purchase In the meanwhile however the severe economic circumstances apparent since late 2008 had caused a serious diminution in property values From the oral argument presented before this Court it seems that Edward White believes that the original purchaser actually completed the agreement and that 1 000 000 has been received by a solicitor acting on behalf of the estate of the deceased and that this has been hidden away A number of facts might usefully be considered here Firstly it may be possible to register an option agreement in the Registry of Deeds but any such registration is not evidence of the completion of a contract for the sale of land Many people contract to purchase land but do not proceed to a sale Secondly businesses do not give away large amounts of money and content themselves with receiving nothing in return Thirdly a local authority such as Bray Town Council is bound by statute to receive value in respect of their transactions Bray Town Council could not have bought the property of the late Kathleen White with the legal title vested in Pizzaro Developments Ltd from the estate of the deceased 4 It is thus clear that a valid purchase took place by Bray Town Council of the property that was the main asset in the estate of the late Kathleen White It is also clear that there was no other party involved in that transaction such as Pizzaro Developments Ltd Edward White nonetheless regards the entire of the transaction concerning the sale of the property as showing evidence of fraud and in addition the commission of a serious crime In that regard on this appeal he has sworn a long affidavit making allegations against a number of lawyers engaged in the transaction It is appropriate to record at this juncture that there is not even the slightest hint of any evidence that anything untoward much less criminal took place However this background and the strong views expressed by Edward White goes some way to explaining how matters which might otherwise have been considered straightforward questions of procedure have become so contentious 5 Two issues arise on this appeal First in time is the removal of one of the executors by Ó Néill J the probate judge in the High Court namely Edward White through order on the 29th June 2011 That resulted in his substitution as the executor involved in the administration of the estate by his brother Damien White The High Court order recites that Damien White was at liberty to extract a Grant of Probate in the estate of the late Kathleen White This directly leads to the second issue on the appeal because Damien White while he willingly undertook the administration of the estate and seems to have completed much if not all of the realisation of the assets died on the 25th May 2014 Hence the solicitor appointed by the executor of the estate of Damien White Rosemary Gantly asks to be substituted in the title of the proceedings for Damien White The relevant notice of motion seeks the following An Order substituting Rosemary Gantly as Administratrix with the Will annexed in the estate of Kathleen White deceased as Plaintiff in the title hereof in place of Damien White 6 This application is opposed by Edward White He has issued his own notice of motion in these proceedings and has grounded that on a substantial and detailed affidavit Both the notice of motion and the affidavit of Edward White have been read out loud in open court on this appeal In that notice of motion the order of Ó Néill J is described as fraudulent and an order is sought from the Court to refer the papers to the Director of Public Prosecutions The relief claimed by Edward White which is most germane to this appeal seeks An Order in the interests of justice to have the last wishes of Kathleen White as seen in her last will and testament and her legal rights under the European Convention on Human Rights to have her son Mr Edward White reinstated as her one and now only executor reinstated as executor on the grounds that Kathleen White s other son the second named executor Mr Damien White is now deceased and because of the fact that the order of O Neill J was fraudulently obtained by the plaintiff respondent s solicitor and counsel on the 29th day of June 2011 as the record and files of the matter show 7 The hearing of that motion from which this judgment derives on appeal operates in substance as an appeal against the order removing Edward White from the administration as executor of the estate of the late Kathleen White 8 The appointment or removal of an executor of an estate and the powers and duties of executors are provided for under the Succession Act 1965 Section 26 thereof reads 1 The High Court shall have power to grant probate to one or more of the executors of a deceased person and a grant may be limited in any way the Court thinks fit 2 The High Court shall have power to revoke cancel or recall any grant of probate 9 These powers are largely self explanatory Indeed in Brady Succession Law in Ireland 2rd Ed Dublin 1995 at para 9 80 that distinguished author only thought it necessary to give the following commentary Jurisdiction to grant probate to one or more of the executors named in the will of a deceased person lies with the High Court which may limit such grant in any way the court thinks fit The court also has the power to revoke cancel or recall any grant of probate 10 When a person dies as a matter of law the executors of the estate must act so as to distribute the assets in accordance with the will of the deceased as soon as is reasonably possible Of course some estates may be more complex than others perhaps setting up trusts or requiring the gathering in of property from more than one jurisdiction What constitutes a reasonable time for gathering in an estate and distributing it to those entitled under a will therefore depends upon the relevant circumstances Under s 62 1 of the Act of 1965 proceedings may not be brought against a personal representative for failure to distribute the estate within one year of the death of the deceased though the court may give leave to proceed over a

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  • in the High Court Reliance on succession to the royal prerogative does not arise 27 The passage from the judgment of Finlay C J at p 456 which was quoted by the trial judge and which is quoted at para 14 above is concerned with the exercise of the jurisdiction to take a person into wardship rather than with whether the jurisdiction exists In both examples given in that passage it had been found that wardship jurisdiction did exist where the person to whom the inquiry relates has property in which case the jurisdiction exists under the Act of 1871 and where the person has no property in which case the jurisdiction exists by virtue of s 9 1 of the Act of 1961 In my view the trial judge was correct in stating that it does not follow from that passage that the High Court has an inherent jurisdiction to create a trust 28 At the core of the submissions advanced on behalf of F D that the High Court does have jurisdiction to establish a trust scheme is the contention that the discretion in exercise of the wardship jurisdiction described by the Supreme Court in the D case encompasses the inherent jurisdiction of the High Court otherwise recognised in Article 34 3 1 of the Constitution which provides The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact civil or criminal Further it is contended that in the context of the development and expansion of the High Court s jurisdiction in the exercise of the wardship jurisdiction following the judgment in the D case the discretionary and inherent jurisdiction of the High Court contemplates circumstances where the family of an affected person may propose a trust or trust like arrangement to be considered by the High Court in the exercise of that jurisdiction In the light of the analysis of the judgment of Finlay C J in the D case set out above those contentions are not consistent with what this Court determined in the D case 29 Apart from that it was submitted on behalf of the General Solicitor and the Attorney General that the High Court does not have the inherent jurisdiction asserted on behalf of F D in reliance on the judgment of the Supreme Court in GMcG v DW The issue being addressed in that case was the jurisdiction of the courts to join the Attorney General in proceedings pursuant to s 29 of the Family Law Act 1995 and in particular whether the courts could be called upon to exercise a unspecified inherent jurisdiction in the face of the jurisdiction delineated by the Oireachtas in s 29 concerning the Attorney General as a party In the first passage from the judgment of Murray J quoted by the trial judge in his judgment Murray J stated at p 26 The concept of inherent jurisdiction necessarily depends on a distinction between jurisdiction that is explicitly attributed to the courts by law and those that a court possess implicitly whether owing to the very nature of its judicial function or its constitutional role in the administration of justice The interaction between the express jurisdiction of the courts and their inherent jurisdiction will depend in each case according to the scope of the express jurisdiction whether its source is common law legislative or constitutional and the ambit of the inherent jurisdiction which is being invoked Inherent jurisdiction by its nature only arises in the absence of the express Later in a passage quoted in part by the trial judge Murray J stated at p 27 Where the jurisdiction of the courts is expressly and completely delineated by statute law it must at least as a general rule exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature To hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope of judicial function and finality of court orders It may indeed be otherwise where a fundamental principle of constitutional stature is invoked against a statutory or regulatory measure determining jurisdiction but that is not the case here 30 Since the decision in F D No 2 in the High Court those passages from the judgment of Murray J in GMcG v DW have been considered in this Court in the judgment of Clarke J in Mavior v Zerko Limited 2013 3 I R 268 the Mavior case where the issue was whether a defendant in High Court proceedings was entitled to security for costs against a plaintiff which was an unlimited company resident within the State Having quoted the passages from the judgment of Murray J in GMcG v DW quoted above Clarke J stated at para 17 It seems to me that what Murray J cautioned against in the passages cited was the creation of parallel jurisdictions for resolving much the same area of controversy founded on on the one hand existing law and on the other hand an asserted inherent jurisdiction As Murray J pointed out to attempt to invoke an inherent jurisdiction of the courts so as to go beyond delineation specified in a constitutionally permissible way in a statute would be for the courts to trespass on the legislative role of the Oireachtas If in a constitutionally permissible way the Oireachtas have defined the limits of a particular jurisdiction then it is not for the courts to extend those limits by invoking a vague inherent jurisdiction 31 On the procedural circumstances before him in the Mavior case Clarke J was addressing a jurisdiction conferred by Order 29 of the Rules of the Superior Courts 1986 the Rules He considered the situation in which the scope of a particular jurisdiction is regulated in part by the Rules and in part by case law under the Rules and he stated at para 20 it seems to me that the real question which the court should ask itself in a case such as this is as to whether any proposed evolution of the interpretation of the scope of the power amounts to a permissible and legitimate exercise of the courts proper interpretative role If so then the scope of the power regulated by the rule may be reinterpreted If not then a rule change or in some cases legislation will be required It is not appropriate that such issues be addressed by the creation of a parallel inherent jurisdiction What would the point be of an elaborate analysis of the circumstances in which an order of the type under consideration in this case could be made under the Rules if it were possible to by pass the rules and the existing case law altogether by invoking a separate inherent jurisdiction If it would not be appropriate for whatever reason to engage in revisiting the scope of the jurisdiction under the Rules then it does not seem to me that the same end can properly be achieved by using the backdoor of an alleged inherent jurisdiction Clarke J in the next paragraph para 21 to which counsel for F D attached significance did recognise that there might be in other circumstances not present in the case before him a situation where the Rules imposed an express restriction which the Court viewed as inappropriate having regard to the powers which the Court enjoys for reasons such as those identified by Murray J inn GMcG v DW However he went on to consider the limits on the extent to which the Rules can properly limit the court s inherent jurisdiction or its express statutory jurisdiction His analysis of the limits of the Rules as secondary legislation in my view is not of any relevance to the question this Court has to resolve 32 On this appeal the issue is whether there exists alongside the wardship jurisdiction expressly vested by statute in the High Court an inherent jurisdiction which exists outside the wardship jurisdiction to enable and regulate the protection of the property of a person who may lack mental capacity As was established with clarity by the decision of this Court in the D case the current jurisdiction of the High Court in matters involving mental incapacity is the jurisdiction expressly vested in the High Court by the Oireachtas by virtue of subs 1 of s 9 of the Act of 1961 and exercisable in the manner stipulated in subs 2 of that section Neither the nature of the High Court s judicial function nor its constitutional role in the administration of justice in my view permits the recognition of an inherent jurisdiction in the High Court to make provision for the protection of persons with mental incapacity outside the wardship process by for example sanctioning the establishment of a trust to protect the assets of a person believed to be incapable of managing his or her own property affairs The rationale underlying the judgment of Murray J in GMcG v DW and of Clarke J in the Mavior case makes it clear why such recognition is not permissible No fundamental principle of constitutional stature has been invoked to justify a different conclusion The effect of a finding that such an inherent jurisdiction exists by this Court would be in the words of Clarke J to trespass on the legislative role of the Oireachtas 33 The consequence of the conclusion in the next preceding paragraph is that no inherent jurisdiction of the type advocated on behalf of F D exists in the High Court and the trial judge was correct in answering the question posed in the preliminary issue in the negative For completeness however the matters which it was contended on behalf of F D support a contrary view will be considered Practice Direction 34 While s 68 of the Act of 1871 was stated by the trial judge to be the source of the jurisdiction of the President of the High Court to make the practice direction which counsel for F D pointed to as supporting the existence of an inherent jurisdiction of the type advocated in my view that statement is not correct Section 68 conferred power on the Lord Chancellor where property of a person lacking mental capacity did not exceed 2 000 in value or 100 per annum to apply it for the person s benefit in a summary manner without inquisition The thresholds provided for in s 68 were amended by the Oireachtas in s 4 of the Courts Act 1971 by substitution of 5 000 for 2 000 and 300 for 100 The Practice Direction in existence at the time of the hearing in the High Court of F D No 2 as outlined by the trial judge provided that where a person lacking mental capacity to deal with his or her affairs was entitled to funds less than 30 000 held by a bank building society or other financial institution the President of the High Court would in certain circumstances allow the funds to be paid to a family member of such a person rather than requiring that a wardship application be brought The Practice Direction then set out the procedural steps to be taken In fact since the decision of the High Court in F D No 2 the Practice Direction was amended in late 2009 to apply to estates below a threshold of 50 000 35 Although as counsel for the General Solicitor and the Attorney General suggested the Practice Direction and the amendment thereof in all likelihood were pragmatic solutions it seems to me that it has not been established that the President of the High Court had or has jurisdiction to vary the thresholds stipulated in or the effect of s 68 by a Practice Direction In any event the existence of the Practice Directions cannot be regarded as being reflective of the existence of an inherent jurisdiction in the High Court to sanction the establishment of trusts in relation to the property of individuals believed to lack mental capacity outside the wardship process as currently regulated by legislation Sixteen Precedents 36 The sixteen precedents identified by the General Solicitor pursuant to the direction of the Supreme Court in F D No 1 also appear to be based on the adoption of a pragmatic approach as distinct from the application of existing jurisprudence It was emphasised on behalf of the General Solicitor that in all but two of the precedents the creation of trusts was approved by the Court for the benefit of individuals who were not of unsound mind and incapable of managing their person or affairs but who required some level of protection The two exceptions it was submitted were in one case specific to its particular facts and in the other case characterised by divergence of medical opinion Counsel for the General Solicitor and the Attorney General conceded that perhaps the jurisdiction of the High Court was exceeded in the approach adopted in the sixteen precedents and in particular that perhaps there was an error in the two exceptional cases However he emphasised that the function of this Court is to determine the applicable law in answering the question in the preliminary issue and he submitted that the precedents are not of assistance in making that determination 37 Despite the very helpful work done by counsel for F D in summarising the sixteen precedents and in particular in drawing the Court s attention to correspondence between the Registrar and other parties involved including the General Solicitor and the plaintiff settlor s solicitors which preceded the making of the order of 23rd October 1997 in relation to Precedent O I have come to the conclusion that it is not appropriate for the Court to find that the precedents or any of them are reflective of the existence of the inherent jurisdiction advocated on behalf of F D in determining the question raised as a preliminary issue Beyond that no view is expressed in relation to the sixteen precedents Decision of High Court in H L case 38 In the H L case the High Court was concerned with an application under s 117 of the Succession Act 1965 I think it is true to say that the Court has a unique statutory function under s 117 Sub section 1 thereof provides Where on application by or on behalf of a child of a testator the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means whether by his will or otherwise the court may order that such provision shall be made for the child out of the estate as the court thinks just The facts outlined in the judgment of Costello J in the H L case disclose that the eldest son of the testator Maurice was at the time of the testator s death suffering to a serious degree from paranoid schizophrenia and was and unfortunately still is incapable of managing his own affairs In relation to the application of s 117 to the circumstances of Maurice Costello J stated at p 165 Section 117 of the Act permits me to make such provision out of the estate as I think is just and I consider that I am empowered to make provision for Maurice by means of the creation of a discretionary trust and that this would be just both to Maurice and the other children Before reaching that conclusion Costello J had regard to the factors to which he was required by subs 2 of s 117 to have regard Sub section 2 provides as follows The court shall consider the application from the point of view of a prudent and just parent taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children 39 Having outlined Maurice s difficult circumstances Costello J concluded that a just and prudent parent in fulfilling his moral duty to make provision for Maurice in those circumstances would establish a discretionary trust in his will and appoint as its beneficiaries not only Maurice but also the testator s other children That approach would enables the trustees to look after Maurice s interests during his life and to care for the other children according to their needs if Maurice did not require the entire income in any particular year 40 The jurisdiction conferred on the Court by s 117 of the Act of 1965 the making of proper provision for a child out of the estate of a testator in circumstances where the testator has failed in his moral duty to make such a provision in accordance with his means in my view is not at all analogous to the jurisdiction conferred by legislation on the High Court in relation to the administration and proper management of the person and property of an individual who by reason of mental incapacity is incapable of managing his or her own affairs The decision in the H L case accordingly is of no relevance to the determination of the question posed in the preliminary issue Order 41 In the closing paragraph of his judgment the trial judge acknowledged that it was clear that the family of F D have a principled objection to wardship which they find intrusive He also acknowledged that they are also totally committed to F D s wellbeing That is undoubtedly the case and is to be admired However the trial judge found that he was obliged to conclude that the High Court has no jurisdiction inherent or otherwise to create the trust scheme the family require For the reasons outlined above I am satisfied that his conclusion is correct in law 42 Accordingly there will be an order dismissing the appeal The consequence is that the order of the High Court dated 29th July 2008 in which the preliminary issue is outlined and is answered in the negative stands THE SUPREME COURT Appeal No 313 2008 Laffoy J Dunne J Charleton J IN THE MATTER OF F D Judgment of Ms Justice Laffoy delivered on 12th day of November 2015 The genesis of and the issue addressed in the High Court order appealed against 1 The order of the High Court the subject of this appeal was made on 29th July 2008 by Sheehan J the trial judge in proceedings entitled In the matter of F D Record No 2008 118MCA WOC 1679 That order recites that the issue before the High Court was the subject of a direction of the President of the High Court made on 4th December 2007 that a preliminary issue set out in the order be addressed by the High Court in accordance with the decision of the Supreme Court of 4th July 2007 The preliminary issue directed to be addressed was as follows Does the High Court have jurisdiction inherent or otherwise not limited to and without exercising the jurisdiction provided for under Section 9 of the Courts Supplemental Provisions Act 1961 the Act of 1961 or the Lunacy Regulation Ireland Act 1871 to establish a trust scheme or other form of arrangement as proposed in the draft deed of trust between F D s family and the Court in advance of a determination by a judge or jury as to whether F D is of unsound mind and incapable of managing his person and property to protect the monies of F D where F D and F D s family object to the exercise of wardship jurisdiction The order which was made pursuant to a judgment delivered by the trial judge on 29th July 2008 noted that the Court had concluded that the High Court had no jurisdiction inherent or otherwise to create the said trust scheme and accordingly the Court answered the issue in the negative 2 In summarising the circumstances in which the Supreme Court ordered that issue to be tried the starting point is the settlement on 23rd October 2001 of a plenary action in which F D was plaintiff Record No 1997 No 9068P When those plenary proceedings commenced F D was a minor and the proceedings were brought by him as a minor suing by his mother and next friend B D However by 23rd October 2001 F D had attained his majority On that day the plenary action came before the High Court Johnson J for ruling having been at hearing before another High Court judge for four days The order of 23rd October 2001 recited that counsel for F D intimated to the Court that an application would be made in due course to the President of the High Court It is clear that what counsel intimated was that there would be an application made to the President of the High Court to have F D taken into wardship On 23rd October 2001 Johnson J approved the settlement in the sum of IR 3m and directed that the said monies be paid into Court to the credit of the plenary action and the separate credit of F D 3 In fact no application of the type envisaged in the order of 23rd October 2001 was made to the President of the High Court after the making of that order although there was interaction between the solicitors for F D and the High Court and the registrar of wards of court the Registrar In any event ultimately by the combined effect of orders of the High Court made by Finnegan P on 20th December 2004 and 21st January 2005 exercising his wards of court jurisdiction it was ordered that an issue was to be tried without pleadings before a judge of the High Court and a jury sitting in Dublin namely whether or not the Respondent F D is of unsound mind and incapable of managing his person and property Those orders were appealed to the Supreme Court 4 However before the appeal was heard F D and his parents F D Senior and B D initiated plenary proceedings against the Registrar Ireland and the Attorney General in the High Court Record No 2004 2188P An application for an interlocutory injunction was brought in those proceedings seeking in broad terms injunctions to restrain the continuance of the wardship inquiry pending the determination of those plenary proceedings The application was refused The judgment of the High Court Kelly J is reported at 2004 3 I R 95 Those plenary proceedings have not been advanced by the plaintiffs therein to conclusion and are still pending They are mentioned because the judgment of Kelly J on the interlocutory application is helpful in giving a fuller picture of what transpired after the making of the order dated 23rd October 2001 approving the settlement than is outlined above 5 The appeal against the orders of 20th December 2004 and 21st January 2005 to the Supreme Court Record No 2005 37 was prosecuted to finality Judgment was given in the Supreme Court on 4th July 2007 by Geoghegan J with whom the other judges Fennelly and Kearns JJ agreed That judgment is reported at 2008 1 ILRM 19 The position of the parents of F D F D Senior and B D on that appeal was summarised by Geoghegan J in his judgment at p 26 as follows What the parents want is a determination by the High Court in advance of any consideration of the wardship issue as to whether an appropriate trust or some other arrangement can be arrived at which would allow them reasonable control of their child and that they be trusted within reason to decide how to apply the monies for the benefit of their son Obviously there would have to be some supervision by the court The contention is that it need not entail wardship The outcome of the appeal was that the Supreme Court allowed the appeal and ordered that the case be remitted to the President of the High Court for the purposes of conducting a preliminary inquiry of the kind F D s parents required the nature of which was outlined in the judgment of Geoghegan J and will be considered later 6 Following the judgment and order of the Supreme Court dated 4th July 2007 the matter was remitted to the President of the High Court who made an order on 15th October 2007 in the original plenary proceedings Record No 1997 No 9068P directing the trial of the issue outlined in paragraph 1 above The parties to the hearing of that issue in the High Court were F D in essence acting through his parents F D Senior and B D the General Solicitor for Minors and Wards of Court the General Solicitor and the Attorney General As has been outlined earlier the High Court answered the question posed in the issue in the negative Before considering the judgment of the High Court which is reported at 2011 I R 75 referred to hereafter as F D No 2 it is appropriate to consider the judgment of the Supreme Court delivered on 4th July 2007 on the first appeal referred to hereafter as F D No 1 Judgment of the Supreme Court in F D No 1 7 In relation to the circumstances in which the orders of the High Court appealed against in F D No 1 had been made Geoghegan J recorded at p 27 that there had been two notices of objection to a wardship inquiry filed on 8th October 2004 one on behalf of F D and the other on behalf of his parents He recorded that the objections were quite detailed and raised some major constitutional issues of which he did not consider it necessary to give any detailed account He stated that what they did raise however was the issue as to whether having regard to the nature of the parents and family circumstances wardship would be necessary for the protection of the monies in court In relation to the process which led to the orders appealed against Geoghegan J stated that not enough attention was paid to the fundamental and arguable objections which the parents had to the whole procedure He continued at p 27 Insufficient importance was attached to the persistence of those objections and to the fact that they could not be characterised as in any way farfetched or frivolous A narrow view was taken that in the wards of court proceedings a preliminary issue could not be set down in advance of the hearing of the inquiry as to whether there were other avenues open in relation to the protection of the appellant s monies I have taken the view that the justice of the case requires that there be a trial of a preliminary issue of that nature and that there is no jurisdictional problem about setting it down Geoghegan J then went on to explain the basis on which he had arrived at the conclusion that there was no jurisdictional problem 8 Having reiterated at p 29 that he saw no legal impediment to an issue being tried in advance of the inquiry as to whether it was open to the President to protect the monies recovered by the appellant by means other than making him a ward of court and if so whether such a course of action would be desirable Geoghegan J went on to explain what he had in mind by the expression by means other than making him a ward of court in the following passage at p 29 I have in mind the creation of a trust or some formal scheme between the court and the parents involving suitable undertakings and suitable reporting arrangements When I refer to a trust I am not necessarily referring to it in its strictly technical sense It is obviously the case that in the ordinary way only the owner of property can create a trust in relation to it and that owner cannot be an infant or of unsound mind But some members of the court at least recall cases in which other arrangements were made by former Presidents though it is only fair to say that there may never have been formal argumentation as to the lawfulness or otherwise of such arrangements I consider that it is only fair and just that this matter should be argued and litigated as the parents request before the inquiry before judge and jury takes place 9 On the issue as to whether other arrangements had been made by former Presidents Geoghegan J gave the following direction at p 30 The wardship jurisdiction has never been regarded as adversarial and therefore I consider that the registrar of wards of court and the office of the general solicitor for wards of court should be requested to make a thorough investigation as to precedents In fact such investigation was carried out and the results were before the High Court on the trial of the preliminary issue as is clear from the judgment of the trial judge in F D No 2 Judgment of the High Court in F D No 2 10 There were three parties on the hearing of the preliminary issue before the High Court F D who was referred to as the respondent the General Solicitor for Minors and Wards of Court the General Solicitor and the Attorney General In his judgment at para 4 the trial judge recorded that F D s legal team stated in the introduction to their submissions that submissions were made on behalf of F D and his immediate family that is to say his parents and his three sisters He also recorded at para 24 that counsel for the Attorney General considered that he had a very limited role in respect of the matter before the Court and pointed out that it did not involve the determination of any question relating to the constitutionality of the wardship system 11 In answering the question posed in the preliminary issue in the negative the trial judge concisely addressed the four matters which F D had relied on as supportive of the proposition that the High Court has jurisdiction to create a trust in the circumstances of the case He recorded that he had considered the draft deed of trust between F D s family and the Court and found that the document envisaged the Court establishing a trust I assume that this was a reference to a document which has been furnished to this Court by counsel for the defendant as Suggested draft of Trust the contents of which will be outlined later 12 The first point relied on on behalf of F D was that there existed at the time the preliminary issue was at hearing before the High Court an undated Practice Direction made by the President of the High Court which provided that where a person lacking the mental capacity to deal with his or her affairs was entitled to funds less than 30 000 held by a financial institution the President of the High Court would in certain circumstances allow the funds to be paid to a family member of such a person rather than requiring that a wardship application be brought As to the existence of such a Practice Direction the trial judge stated at para 30 that it did not involve the establishment of a trust by the Court He also identified the source of the jurisdiction as s 68 of the Lunacy Regulation Ireland Act 1871 the Act of 1871 as amended by s 4 of the Courts Act 1971 the Act of 1971 13 Secondly the trial judge expressed his views on sixteen precedents which had been identified and reported on by the General Solicitor in response to the direction given by the Supreme Court referred to at para 9 above He found that an examination of those precedents revealed that in no instance was the High Court ever the settlor of a trust and on that basis he found no support in those precedents for the contention of F D He does seem to have attached particular significance to the fact that at no time did the President of the High Court become a party to the deed in any of the cases 14 Thirdly the trial judge considered the decision of the Supreme Court in In re D 1987 I R 449 the D case He quoted the following passage from the judgment of Finlay C J with whom the other four judges of the Supreme Court concurred on which counsel for F D had placed considerable reliance at p 456 It is I think important to emphasise that the jurisdiction of the High Court to take persons of unsound mind into wardship is and must always remain a discretionary jurisdiction Where a person has property it is in my view open to the President of the High Court or to any judge exercising the jurisdiction on his designation to conclude that wardship is not necessary in any given circumstances either for the protection of that property or of the person of the respondent Similar considerations must apply to an application brought to admit to wardship a person with no property One of the matters on which the High Court must then exercise its discretion is as to whether wardship is necessary for the protection of the person who is the respondent in such proceedings The trial judge concluded that it does not follow from that passage or indeed from any other part of the judgment that the High Court has inherent jurisdiction to create a trust While he accepted the submission of counsel for the General Solicitor that the decision in the D case is authority for the proposition that the jurisdiction of the High Court is broader than the jurisdiction conferred by the Act of 1871 as a result of the parens patriae jurisdiction formerly exercised by the Lord Chancellor and now exercised by the President of the High Court he made it clear that he accepted that the submission only extends to the Court s wardship jurisdiction to include the admission to wardship of a person with no property who may require protection of his or her person 15 Fourthly the trial judge made observations in relation to the reliance by counsel for F D on the decision of the High Court Costello J in H L v Governor and Company of the Bank of Ireland 1978 I L R M 160 the H L case His conclusion was that as the discretionary trust in that case was established by Costello J pursuant to s 117 of the Succession Act 1965 the Act of 1965 the decision does not lend support to F D s case 16 At a broader level against the background of the argument made on behalf of F D that the High Court has jurisdiction to hear every kind of justiciable matter and that the only exceptions are those matters removed from its jurisdiction by the Constitution or by statute the trial judge considered the concept of inherent jurisdiction by reference of the decision of the Supreme Court in GMcG v DW No 2 Joinder of the Attorney General 2000 4 I R 1 GMcG v DW The passages from the judgment of Murray J which he quoted will be considered later He found that the passages in question were directly applicable to the issues before the Court While accepting the submission made on behalf of the General Solicitor that the full and original jurisdiction of the High Court is

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