Court of Appeal: High Court wrong to conclude Circuit Court judge must be joined as respondent in judicial review proceedings

About this case:

• Citation:
  [2019] IECA 124
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Mary C. Irvine

Stating that it was clear from Order 84, rule 22(2A) that the presiding judge must not be named as a respondent unless allegations of mala fides or other misconduct form part of the grounds of review, Ms Justice Mary Irvine remitted the matter back to the High Court for hearing.

Background

The appellant father, M, and the respondent mother, M, had a son, J,  in 2011. After the breakdown of the relationship in or around March 2012, J has been in the custody of the respondent. The matter of regularising access to J has been before the courts on numerous occasions:

• In November 2012, an access order was made by the District Court;
• In December 2015, the District Court ordered that the father should have access for five hours every Saturday;
• In March 2016, interim access orders were made by the Circuit Court;
• In March 2017, the father’s access was ceased pending re-engagement by Tusla;
• In May 2017, the father applied to the District Court seeking a variation of the access order. This was transferred to the Circuit Court, where a report was ordered to address the issue of whether the father’s access was in the best interests of the child;
• In March 2018, the report and its recommendations were considered, and a further follow-up report was ordered;
• In June 2018, the Circuit Court (Judge Petria McDonnell) granted an access order, providing access every second Sunday for seven hours (or six hours when the clock changes to winter time). The order also stipulated that J’s stepsister attend most access occasions; that the mother has the right to reduce or withdraw access at her discretion; that phone call access be provided weekly, but that this can be monitored and terminated by the mother; that further applications between the parties in relation to access were barred without leave of the Circuit Court; and that Judge McDonnell retain seisin of the matter.

High Court

In September 2018, the father was granted leave to apply for judicial review. He sought an order of certiorari, quashing the order and for the matter to be remitted back to the Circuit Court.

The father joined the mother as the named respondent in the judicial review proceedings but did not join the Circuit Court judge as a co-respondent. Ms Justice Irvine explained that it was also relevant that the father failed to serve copies of the proceedings on the registrar of the Circuit Court where the orders under challenge had been made.

In the High Court in January 2019, Ms Justice Deirdre Murphy struck out the application for certiorari by the father on the ground that is had not been properly constituted pursuant to Order 84, rule 22 of the Rules of the Superior Courts. Ms Justice Murphy said that the father should have joined the judge, at least anonymously, as defendant and was wrong to name the mother as the respondent in the judicial review proceedings.

Significantly, Ms Justice Murphy had determined that the provisions of Order 84, rule 22(2A) of the Rules of the Superior Courts required an applicant, even in proceedings brought to challenge an order of a circuit or District Court judge where no allegation of mala fides or misconduct was advanced, to join that judge as a named respondent to the proceedings on an anonymous basis.

Court of Appeal

Seeking to set aside Ms Justice Murphy’s order, the father submitted that Ms Justice Murphy erred in law when she dismissed the application on the ground that it had not been properly constituted; that Ms Justice Murphy misconstrued Order 84, rule 22(2A); that Hall v Stepstone Mortgage Funding Ltd [2015] IEHC 737 applied in that the onus to defend the proceedings fell on the original respondent and not the judge; and that Order 84, rule 22(2A) should be interpreted in line with OF v O’Donnell [20120] 3 IR 453.

Ms Justice Mary Irvine considered Order 84, rule 22(2A), and said it was clear that in circumstances where a determination of the Circuit or District Court is to be judicially reviewed, the judge must not be named as respondent, and that the other party or parties should be joined as respondents – unless allegations of mala fides or other misconduct against the presiding judge form part of the grounds of review. Ms Justice Irvine was satisfied that in the present appeal, there were no allegations of mala fides or misconduct, and the respondent mother had not sought to demonstrate that such could be found in the appellant’s grounds of appeal or affidavit.

In all the circumstances, Ms Justice Irvine was satisfied that the appellant father had been correct to join the mother as the respondent in the judicial review proceedings, and was correct not to join the judge – anonymously or otherwise.

On the appellant’s failure to serve copies of the proceedings on the Circuit Court Registrar, Ms Justice Irvine noted that this argument had not been advanced by the respondent in the court below. Indeed, the issue as to whether the proceedings were properly constituted was raised by the court itself – not the respondent. In any event, Ms Justice Irvine was satisfied that the failure to serve copies of the proceedings on the Circuit Court Registrar would not have been fatal to the appellants claim, as the High Court judge could have adjourned the hearing to allow such service.

Given the error made by Ms Justice Murphy, Ms Justice Irvine said she would allow the appeal and proposed that the proceedings be remitted back to the High Court for hearing subject to the service of the proceedings on the Circuit Court Registrar in accordance with Order 84, rule 22(2A)(c) of the Rules of the Superior Courts. Ms Justice Irvine granted the appellant seven days to serve the proceedings on the Circuit Court Registrar.

• by Seosamh Gráinséir for Irish Legal News