About this case:

• Citation:
  [2025] IECA 63
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Charles Meenan

Delivering judgment for the High Court, Mr Justice Charles Meenan rejected the proposition that a ‘higher threshold’ applies where issues of State security and external relations are invoked in proceedings, noting: “For that to occur it would have to be established that court practices or procedures, or variations of them, are incapable of striking the correct balance between the interests of the State and the individual litigant.”

Background

The respondent senator alleged inter alia that the Irish government entered into a ‘secret’ agreement with the UK following the 9/11 attacks, pursuant to which UK military aircraft could patrol Irish airspace and intercept any aircraft posing a threat to Ireland or the UK.

The respondent claimed that the agreement, which had not been laid before the Dáil, violated inter alia Article 29.5.1 of the Constitution.

Upon the application of the State pursuant to O.25, r.1 of the Rules of the Superior Courts 1986 (as amended) (RSC), Mr Justice Rory Mulcahy directed the trial of a preliminary issue: whether the exercise of the government’s executive powers in relation to external security and relations of the State was justiciable or amenable to judicial review on the basis of the facts as pleaded.

When the matter came before the trial judge, Mr Justice Cregan, for hearing, he refused to consider the preliminary issue where the State had not accepted the facts as pleaded by the respondent, where certain of the pleas in the statement of claim were pleas of law and/or mixed pleas of fact and law, and where evidence was required before a court could come to a conclusion on the relevant matters pleaded by the respondent.

The State set out some 14 grounds of appeal as against Mr Justice Cregan’s refusal.

The Court of Appeal

Mr Justice Meenan considered the State’s contention that the High Court erred in law in concluding that the preliminary issue was not appropriate for trial as a preliminary issue and failed to have regard to the basis upon which Mr Justice Mulcahy had directed same.

Having regard to O.25, r.1 RSC, Mr Justice Meenan stated that the order “is clearly directed towards the consideration of a point of law” for which “it is necessary to have agreed facts”, pointing out that the authorities referred to by Mr Justice Cregan fully supported that proposition and that there were no agreed facts in the case.

The Court of Appeal also highlighted that the approach taken in McCarthy v RSA [2012] IEHC 56, wherein the judge interrogated the pleadings to identify which facts were not in dispute for the purposes of the trial of a preliminary issue, was not open to Mr Justice Mulcahy and that Mr Justice Cregan had concluded “what was undeniably the case, that there were no agreed facts.”

The court then examined the State’s argument that the High Court failed to have regard to the “greater than usual” onus on the respondent to plead material facts with clarity and particularity in light of the sensitive issues raised and the inquiry sought, and that the respondent’s pleas were “bare assertions” insufficient to support his far-reaching claims.

Observing inter alia that the “issues of national security and external relations raised in these proceedings are of fundamental importance”, as was “Senator Craughwell’s right of access to the courts to have his proceedings determined in accordance with law”, Mr Justice Meenan disagreed with the State’s proposition that a “higher threshold” applies when considering matters of State security and external relations, with the result that the court ought to have been more receptive to its application.

The judge also had regard to Mr Justice Cregan’s observation that the defendants “submit that the plaintiff has not pleaded the alleged agreement with any great particularity. However that cannot be avoided in circumstances where the plaintiff pleads that it is a ‘secret agreement’ and the defendants themselves to refuse to admit or deny whether such an agreement is in existence.” 

In this regard, the court noted that “this statement should not be taken in any way to lessen the burden on Senator Craughwell to prove his case”.

As to the contention that the High Court wrongly characterised the State’s application as an application under O.19, r.28 RSC to strike out the proceedings on the basis that they did not disclose a reasonable cause of action or were bound to fail, Mr Justice Meenan observed that this ground of appeal was unsustainable where “at its heart was the State’s submission that the statement of claim did not detail material facts to support Senator Craughwell’s action but rather consisted of assertions”.

The judge continued: “In my view, the State was, in effect, seeking an order under O. 19, r. 28 RSC striking out the proceedings under the guise of the hearing of a preliminary issue under O. 25, r.1 RSC.”

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Gerard Craughwell v The Government of Ireland & Ors [2025] IECA 63