High Court: Courts are not a playground for litigants to amuse themselves at will

About this case:

• Judgment:
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Peter and Agnieszka Nowak sought leave to apply for judicial review in order to quash a determination of the Residential Tenancies Board in an application between them and their landlords, which fixed a market rent for their tenancy.

Trivialisation of court procedure

Firstly, Mr Justice Humphreys sought to address the failure of the first applicant – Mr Peter Nowak – to comply with court rules in a sworn affidavit in which he described his occupation as ‘a disciple of the Lord Jesus Christ’.

Order 40, rule 9 provides that ‘Every affidavit shall state the description and true place of abode of the deponent’, where description means “occupation” – an approach going back to the Rules under the Supreme Court of Judicature (Ireland) Act 1877 and similarly discussed in Spaddacini v. Treacy (1888) 21 LR Ir 553.

In Spaddacini, it was held that “gentleman” was not a sufficient description of a person (such as a grocer) who actually had an occupation, with the trial judge stating that ‘no one has suggested that ‘human being’ would be the proper description’.

Justice Humphreys added that the trial judge had clearly ‘not met someone of Mr Nowak’s inventiveness’.

Justice Humphreys condemned Mr Nowak’s fanciful description of himself – reiterating that it did not constitute a description of occupation envisaged by Order 40, rule 9; and that ‘…if such a mode of description were permitted, one could not stop the next deponent describing themselves in the opening of an affidavit as a “Guardian reader” or the one after that as a “keen golfer”, and so on’.

Criticising Mr Nowak’s conduct, Justice Humphreys stated that the affidavit trivialised both religion and court procedure. Furthermore, the solicitor who took it should not have allowed it to be sworn in that form.

It was therefore held that Central Office was entirely correct in refusing to accept the affidavit.

Application for judicial review

Justice Humphreys considered the Nowak’s application in accordance with the Supreme Court decision in G v DPP 1 IR 374.

Firstly, the Nowak’s application alleged that an adjournment of the hearing which had been granted by the Tribunal on 15th June 2015 was contrary to the Tribunal’s procedures – however Justice Humphreys was confident that this would not give rise to arguable grounds to quash the ultimate decision following a resumed hearing in any event.

Secondly, it was alleged that ‘there was no reasonable, rational evidential basis upon which the respondent could have reached the decision to the effect as set out in the determination’. On the facts, Mr. Nowak disagreed with the merits of the Tribunal decision, but the complaints did not relate to the legality of the decision (Sweeney v Fahy IESC 50). Accordingly, Justice Humphreys stated that no supporting evidence had been put forward.

Thirdly, it was alleged that because the chairperson of the Tribunal ‘had been a member of a Tribunal involving the same parties some years previously’, this amounted to bias and prejudice of the members of the Tribunal. Again, Justice Humphreys concluded that this was unfounded.

Finally, it was alleged that certain email communications were evidence of ‘fraud by the Private Residential Tenancies Board’. Mr Nowak made a complaint to the Garda Bureau of Fraud Investigation, and unsuccessfully applied to the High Court for injunctive relief in relation to this allegation. Justice Humphreys stated that the allegation of fraud was ‘at the most charitable, a huge overreaction and certainly not an arguable basis to quash the decision’.

In the circumstances no arguable ground for challenging the validity of the decision had been shown, and the proceedings were particularly frivolous and vexatious when put in the context of a campaign of litigation by the applicants

Legal frivolity

The Residential Tenancies Board determination was appealable to the High Court on a point of law pursuant to section 123(3) of the Residential Tenancies Act 2004 – a remedy which the applicants had already taken advantage of.

Justice Humphreys emphasised that it was ‘not open to a party to both actively appeal and challenge on judicial review the same decision’ – therefore progressing the appeal disentitled them from proceeding with this application for judicial review. To proceed was engaging in legal frivolity.

Furthermore, given that the judicial review application was the fifth High Court action instituted by the applicants, it was clear that their approach was ‘to appeal each and every determination made… if an order is not made in their favour’ and a ‘tactic employed by the applicants to delay proceedings for as long as possible and to frustrate the proceedings’.

Apart from the manifest frivolity and grandiosity, Justice Humphreys stated that “the approach of throwing out serious and unsubstantiated allegations of bias, and of responding to an adjournment application with a complaint to the Garda Bureau of Fraud” did little for the reputation or credibility of the applicants.

In summing up, Justice Humphreys stated that the courts were not a playground for litigants to amuse themselves at will, and warned that in a private law context, such conduct has a significant downstream effect on private persons – in this case the landlords. For the court to indulge in such applications would be to ‘shift the social cost in dealing with the resultant mess to unheard private parties’.

For the aforementioned reasons the application for leave was dismissed; and Justice Humphreys ordered that the court should hear whether any order should be considered limiting Mr & Miss Nowak from engaging in future frivolous applications.