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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Mitchell -v- Ireland  IESC 11 (28 March 2007)
Cite as:  IESC 11,  2 ILRM 110,  3 IR 283
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Judgment Title: Mitchell -v- Ireland
Composition of Court: Murray C.J., Fennelly J., Kearns J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
The Supreme Court
ireland, the atTorney general and the director of public prosecutions
This is an appeal from the order and judgment of the High Court (Hanna J.) delivered on 18th March, 2005 whereby it was ordered that the plaintiff’s claim herein should stand dismissed on the grounds that the same was an abuse of process. A motion seeking such relief was brought on behalf of the defendants on the 8th February, 2005, just one week prior to the scheduled hearing of the proceedings which had been initiated by the plaintiff on the 30th May, 2003. In those proceedings the plaintiff had claimed, inter alia, a declaration that s. 62 of the Offences against the Person Act, 1861 was unconstitutional and therefore null and void. If the plaintiff was successful in those plenary proceedings, some 31 offences contrary to s. 62 of the Offences Against the Person Act, 1861 alleging sexual abuse of various complainants by the plaintiff between 1963 - 1976 could not have proceeded further.
The plaintiff at all material times was a Christian Brother and teacher at St. Joseph’s Residential School at Salthill in Galway between August, 1967 and August, 1974. Between March, 1995 and January, 1996, six former pupils of the school made complaints to An Garda Síochána alleging that they had been sexually abused by the plaintiff during periods between 1963 and 1976. A garda investigation commenced and statements were taken from the six complainants. The plaintiff was interviewed on two occasions in 1996 and denied the allegations. A warrant for his arrest was issued on 16th July, 1997 and executed on 8th September, 1997. On 1st October, 1997, the plaintiff was charged with 25 offences of indecent assault under s. 62 of the Offences against the Person Act, 1861. Thereafter he was remanded on bail and has remained on bail ever since.
A Book of Evidence was served in November, 1997. In February, 1999 the plaintiff was charged with eight further offences concerning different complainants, though the charges related to more or less the same period. Those latter complainants had made their allegations in June and July 1997. A second book of evidence in respect of those charges was served on 3rd February, 1999. All of the charges, 33 in total, including 31 involving offences under s. 62 of the 1861 Act, were consolidated and became the subject of one return for trial dated 28th February, 2000.
However, prior to the consolidation and the return for trial, the plaintiff obtained leave to apply for judicial review against the Director of Public Prosecutions on 16th February, 1998. This application sought to restrain any trial on the grounds of delay. That application, which related only to the first tranche of charges, was heard by Mrs. Justice McGuinness, who refused the application on 20th December, 1999.
There then followed various requests for disclosure, applications for third party discovery and applications to transfer the case from Galway to Dublin.
On 30th May, 2003, the plaintiff instituted, by way of plenary summons, the proceedings herein. In these proceedings he seeks, by way of declaratory relief, a declaration that the provisions of s. 62 of the Act of 1861 are inconsistent with the Constitution. He further seeks consequential relief by way of injunction restraining the prosecution of the offences of indecent assault that have been laid against him under that section.
A statement of claim was delivered on the 4th September, 2003. A defence thereto was delivered on 26th November, 2003. On or about 11th December, 2003, the plaintiff changed his solicitors and a notice of change of solicitors was served. Following the introduction of the European Convention of Human Rights Act, 2003, an amended statement of claim was delivered on the 19th November, 2004 and an amended defence thereto was delivered on the same date.
That defence – in both its original and amended form – failed to raise any point or objection to the effect that the proceedings constituted an abuse of process.
The matter was listed before Finnegan P. (as he then was) on 15th November, 2004 at which point counsel for the defendants indicated to the learned President that the case was ready for hearing and that there were no outstanding issues. No mention or reference was made to any objection to the proceedings on grounds of abuse of process. The learned President fixed the 15th February, 2005 as the date for the hearing of the plenary proceedings. However, on 8 February, 2005, the defendants brought the motion, the subject matter of this appeal, seeking to dismiss the plenary proceedings on the basis that the same were an abuse of process. The return date for the hearing of the motion was the same date as that fixed for the full hearing but the trial judge elected to deal with the motion as a preliminary issue and, following a two day hearing, gave a reserved judgment on the issue on 18 March, 2005.
In the course of the judgment, the learned trial judge rejected a contention raised by the plaintiff to the effect that the defendants were estopped from raising the issue of abuse of process by reason of their own delay. He then proceeded to deal with the question whether it would have been possible to litigate the constitutional issue raised in the proceedings within the framework of the Judicial Review proceedings which had been heard and determined by McGuinness J. in the High Court in 1999. While the learned High Court judge acknowledged that a “stand alone” challenge to the constitutionality of any statute should be brought by way of plenary action, he noted that the reason why the issue raised in the present proceedings was not ventilated in the earlier Judicial Review proceedings was for the simple reason that the point had not occurred to the plaintiff’s then lawyers. He took the view that as the issue of constitutionality would clearly have been regarded as one of two attacks upon the prosecution of the criminal charges, it was an issue which could properly have been accommodated within the framework of the Judicial Review proceedings.
Dealing with the question of abuse of process itself, he considered the origin of the rule in Henderson v. Henderson (1843) 3 Hare 100 as approved in this jurisdiction in Carroll & anor v. Ryan & ors, Carroll v. The Law Society of Ireland  1 I.R. 309 wherein Hardiman J referred to the rule in the following terms:-
Following judgment the plaintiff issued a Notice of Appeal to this Court on 19th April, 2005, essentially raising four grounds of appeal as follows:-
1) The defendants’ delay in raising the issue of abuse of process until after the allotment of a special date for hearing the substantive constitutional issue should have disentitled them from raising this point.
2) The learned High Court judge erred in holding that the constitutional issue could have been raised in the earlier Judicial Review proceedings, when it could only have been raised in separate plenary proceedings.
3) The learned High Court judge erred in holding that the later eight charges, which were not the subject of the earlier Judicial Review proceedings, could not conceivably have been proceeded with had the plaintiff’s succeeded in the Judicial Review proceedings, and the rule in Henderson should not have applied to those later charges, since no issue in respect of them had ever been litigated previously by the plaintiff.
4) The learned High Court judge erred in applying the rule in Henderson in too rigid and inflexible a manner, without due regard to the circumstances of the case and the explanation offered for failing to raise the issue in the earlier Judicial Review.
It is perhaps desirable, firstly, to identify the constitutional issue raised in the plenary proceedings. In those proceedings the plaintiff contends that s. 62 of the Offences Against the Person Act, 1861 (as amended and operational at the time of the offences alleged against him) is in breach inter alia of Article 40.1 of the Constitution, amounting to unjustifiable inequality before the law, as it imposes a maximum sentence of ten years imprisonment for indecent assault on a male person, that being a sentence five times greater than the maximum two year sentence for a first conviction of indecent assault on a female, as provided for by s. 6 of the Criminal Law Amendment Act, 1935. The plaintiff contends that this is a manifest discrimination on gender grounds which is presumptively unconstitutional. Further declaratory relief is sought by the plaintiff on similar grounds under the European Convention of Human Rights Act, 2003.
Secondly, the defendants have conceded that the plaintiffs claim in those plenary proceedings is neither frivolous nor vexatious nor one which must necessarily fail. The learned trial judge himself concluded that the constitutional issue, had it occurred to the plaintiff’s then legal advisers, would obviously have been “germane”.
Thirdly, this Court was informed at the outset of the hearing by Mr. Coffey, senior counsel for the defendants, that, although no order prohibiting the trial of the plaintiff had been made, the Director of Public Prosecutions had nonetheless on grounds of prudence, decided not to proceed with same until the present application had been disposed of.
Fourthly, Mr. Coffey acknowledged that his sole point in relation to the abuse of process issue was that the constitutional issue which was the subject matter of the plenary proceedings should either have been raised in the earlier Judicial Review proceedings or in parallel plenary proceedings initiated at the time of those Judicial Review proceedings. He contended that the failure on the part of the plaintiff to do either of those things should properly lead the Court to conclude, as the learned High Court judge had done, that the plenary proceedings, which sought, as he put it, to “unhorse” the Director in maintaining the prosecution should, for that reason, be seen as an abuse of process.
The first point to be considered is whether the defendants’ delay in raising the issue of abuse of process until after the allocation of a special date for hearing the substantive constitutional issue should disentitle them from relief.
The court’s power to dismiss proceedings which constitute an abuse of process of the court is an inherent power of the court and it is, strictly speaking, correct to say that there is no time limit within which the issue of abuse of process must be raised or dealt with. This inherent power complements the jurisdiction given by Order 19, Rule 28 RSC 1986, to strike out pleadings which disclose “no reasonable cause of action or answer” or pleadings which are “frivolous or vexatious”.
In citing the High Court’s inherent jurisdiction to so deal with proceedings which it perceives to be an abuse of process, the learned trial judge relied on the dicta of Costello J. in Barry v. Buckley  I.R. 306 at p. 4:-
However, the defendant’s contention is that the issue should have been raised in the earlier judicial review proceedings. The plaintiff for his part contends that the defendant should be denied relief on the motion to dismiss because of delay in bringing same. It is appropriate to first deal with the latter contention.
In computing delay, time commenced to run from the date of issue of the plaintiff’s plenary summons on 30th May, 2003. All defendants had entered appearances by October, 2003. The defence was filed on 26 November, 2003. It raised no issue or complaint of abuse of process. When the pleadings were amended late in 2004, the amended defence dated 19 November, 2004 again raised no issue of abuse of process. Accordingly, when the defendants made application on 15th November, 2004 to Finnegan P. for an early date for the plenary hearing of the constitutional challenge, indicating to the court that the matter was ready for hearing, it appeared there were then no outstanding issues. The 15th February, 2005 was fixed as the date for the plenary hearing on this basis. As previously noted, the motion seeking an order to dismiss the plaintiffs claim on grounds of abuse of process was issued on the 8th February, 2005, just one week before the hearing date. In the course of his judgment, Hanna J. noted the “undoubtedly significant delay in raising the issue of abuse of process”. The learned trial judge went further and stated that in his view it was desirable that an issue of this nature be dealt with at the earliest reasonable stage in the proceedings, rather than “let matters trundle onwards with inevitable time and costs implications”. This Court would emphatically support that view, not least because the raising of a constitutional issue about a particular statutory provision may have widespread implications far beyond the individual case itself. If the State case had been based on the delay by the plaintiff in raising the constitutional issue, in circumstances where there was the background of the judicial review, and where the State raised the point about the plaintiff’s delay in timely fashion, the plaintiff might have faced a major obstacle in this case.
The defendants have not sought to explain or justify the delay on their part or offer reasons for the last minute nature of the motion to dismiss. However, the learned trial judge concluded that once a potential abuse of process had been raised, albeit at a very late stage, it was incumbent upon the court to assess the situation and that any delay in bringing an alleged abuse to the attention of the court should not weight heavily, or at all, with the court. I respectfully disagree. In Johnson v. Gore wood & Co.  2 AC 1, Lord Bingham of Cornhill characterised delay to move an application to dismiss as having the following implications:-
The plaintiff further contends that in any event it would not have been possible to accommodate the constitutional challenge within the earlier judicial review proceedings. In this regard the plaintiff relies on the decision of this Court in Riordan v. An Taoiseach (No. 2)  4 IR 343 and the dicta of Barrington J. at pp 350 – 351 where he said as follows:-
The defendants counter these arguments by contending that, even if the inclusion of the constitutional claim had been contrary to established procedure, a set of parallel plenary proceedings could have been initiated by the plaintiff and brought concurrently with the judicial review proceedings.
However, the immediate difficulty which arises in respect of this otherwise meritorious contention is that parallel constitutional proceedings would not have encompassed the second tranche of eight charges alleging indecent assault on two different males on dates between January, 1961 and 1973 in respect of which no Judicial Review proceedings were ever brought.
Had the plaintiff succeeded in the Judicial Review proceedings in relation to the first set of charges, he still would have faced the charges contained in the second Book of Evidence and would either have had to bring further Judicial Review proceedings in relation to those eight charges and/or brought the present plenary constitutional action in relation to those eight charges. In fact, no legal proceedings whatsoever have ever been brought in relation to those eight charges.
The learned trial judge dealt with this point by finding:-
Ultimately, the key issue in the case is to consider whether the order granting dismissal of the plaintiffs claim for abuse of process is justified by application the rule in Henderson v. Henderson  3 Hare 100.
As already noted, the rule in Henderson v. Henderson effectively means that a litigant may not make a case in legal proceedings which might have been but was not brought forward in previous litigation. In that case Wigram V. C. formulated that principle as follows at pp 114 and 115:-
However, it is equally clear on the authorities that the rule in Henderson v. Henderson must not be applied in a rigid or mechanical manner so as to deprive the court of any discretion to hold otherwise in an appropriate case.
Recognising this requirement for a degree of flexibility, Hardiman J. stated as follows in A. A. v. The Medical Council and the Attorney General  4 IR 302, at p. 317:-
“the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’.”
In the case of A. A. v Medical Council  4 IR 302 no reason was ever advanced as to why the point ultimately taken (ie, the absence of legal aid) had not been raised in the earlier proceedings. There had been no change of circumstances in the intervening period insofar as the applicant was concerned. The applicant’s financial position had not worsened in the interval: he was impecunious at all material times.
The requirement to adopt a flexible approach was stressed in Johnson v. Gore Wood and Co.  2 A.C. 1 in which Lord Bingham of Cornhill stated at p. 31:-
The current plenary proceedings, by contrast raise a discrete constitutional point which could not “sensibly” have been raised as part of the judicial review proceedings. An explanation, albeit not the most meritorious, has been offered as to why the point was not adverted to at an earlier time. However, that does not lead inexorably to a conclusion that the raising of the constitutional issue at a later time was an abuse of process. Nor can the present proceedings be characterised as dishonest or tantamount to the unjust harassment of any party. The defendants themselves have merely contended that the plaintiff could have raised his constitutional point either in the judicial review or in parallel plenary proceedings brought at the same time.
Unlike the A.A. case, there were changed circumstances operating in the plaintiff’s case, because eight additional charges involving different complainants were added to those which were the subject matter of the judicial review. There has been no litigation of any sort to date in relation to the second tranche of charges.
Secondly, the parties to the present proceedings are not the same, given that the Director of Public Prosecutions was the opposing party in the judicial review proceedings but is not a party to the plenary proceedings. Furthermore, the plaintiff is not here seeking to reopen the same subject of litigation. He is not seeking to challenge a related procedural defect which might, and which should have been argued in the context of his delay type judicial review in 1998. What the plaintiff seeks to achieve in the present proceedings is a discrete and distinct subject of litigation, namely, that of seeking to have the statutory sentencing regime as set out in s. 62 of the Offences Against the Persons Act, 1861 declared unconstitutional. The dicta of Barrington J in Riordan v An Taoiseach(No. 2) 1999 4 I.R.332 make it clear that this was not a relief to be appropriately claimed in the judicial review proceedings.
Finally, any case on the ‘parallel proceedings’ argument seems to me to have the fatal flaw that such proceedings could not address charges not yet in being at the time of the judicial review proceedings and in respect of which no legal proceedings were ever brought. In another case, however, that argument might well prove conclusive in favour of a defendant.
For all these reasons, but also because of the delay in bringing the motion to dismiss, I would allow the appeal.