Briefing
Update News from Ireland’s on-line legal awareness service Compiled by John X Kelly of FirstLaw
ADMINISTRATIVE Inquests Coroner’s court – non-attendance of witness – role of attorney general – role of coroner – service of witness summons – whether witness obliged to attend inquest – whether relevant statutory provisions unconstitutional – whether witness guilty of contempt – whether attorney general empowered to bring proceedings – Coroners Act, 1962, sections 26, 30, 37 and 38 The defendant was the widow of a man who had been fatally shot. She initially appeared at the inquest which, for legal reasons, was adjourned. She then failed to appear at the resumed hearings, despite having been served with a witness summons. The attorney general then issued plenary proceedings seeking to compel the attendance of the defendant pursuant to the provisions of the Coroners Act, 1962 and in this regard also sought an interlocutory injunction. The High Court (Kelly J) granted the injunction sought and the defendant appealed. Keane CJ, delivering judgment, held that the attorney general was a guardian of the rights of the public and could seek relief in appropriate circumstances. In this instance, the upholding of the injunction would dispose entirely of the case and thus the usual test in the issue of injunctions should not apply. It had not been demonstrated that this was not an exceptional case requiring the courts to exercise their residual function to ensure compliance with the law. The attendance of witness at a inquest was a matter for a coroner alone to decide. The appeal would therefore be allowed and the relief sought by the attorney general would be refused.
Attorney General v Lee, Supreme Court, 23/10/2000 [FL3228] Transport, taxis Delegated legislation – European law – scheme for provision of new taxi licences – nature of judicial review – whether statutory scheme providing for issue of new taxi licences ultra vires – whether challenge to legislation precluded by laches or acquiescence – whether proposed scheme qualitative or quantitative in nature – Road Traffic Act, 1961, section 82 – Road Traffic (Public Service Vehicles) Regulations 2000 – Road Traffic (Public Service Vehicles) (Amendment) Regulations 1999 The applicants issued judicial review proceedings seeking to challenge certain provisions of the Road Traffic (Public Service Vehicles) Regulations 2000 which provided for the issuing of new taxi licences. The applicants challenged the proposal to issue additional taxi licences to existing licence-holders. The applicants argued that the relevant provisions of the Road Traffic Act, 1961 did not permit the scheme proposed by the respondents. Murphy J was satisfied that while the minister had the right to regulate the control and operation of taxis, the restrictions proposed by the minister were quantitative in nature and were not permitted under the Road Traffic Act, 1961. In addition, by granting the new licences to Irish nationals, the licensing scheme could be said to offend against the principle of non-discrimination contained in European law and indeed could be said to infringe aspects of European competition law. The orders sought by the applicants would be granted. Humphrey v Minister for
Environment, High Court, Mr Justice Murphy, 13/10/ 2000 [FL3206]
COMPANY Delay, statutory interpretation Liquidation – duties of directors – restriction of directors – notice of intention to proceed – whether legislation intended to be retrospective – whether delay in bringing proceedings inordinate and inexcusable – whether balance of justice favoured allowing motion to proceed – Companies Act, 1990, section 150 The applicant, acting as official liquidator, had brought a motion under section 150 of the Companies Act, 1990 seeking to have the respondents restricted from acting as directors. The motion had been issued in 1994 and had not been proceeded with. The liquidator now sought to proceed with the motion and in this regard had served a notice of intention to proceed. On behalf of the respondents, a motion was brought seeking to have the liquidator’s motion set aside. It was argued on behalf of the respondents that an order made under section 150 must date from the commencement of proceedings. In addition, it was argued that there had been excessive and inordinate delay by the liquidator in bringing his motion. O’Donovan J held that section 150 was prospective and any restriction made thereon would date from the date of the relevant court order. The liquidator had quite properly proceeded with a damages claim against the respondents before bringing the section 150 motion. However, the delay that had occurred in bringing the section 150 motion was inexcusable and inordinate. Applying the principles of Primor
Law Society Gazette December 2000
plc v Stokes Kennedy Crowley, the balance of justice required that the liquidator’s motion should proceed. The motion brought by the respondents would therefore be dismissed. Duignan v Carway, High Court, Mr Justice O’Donovan, 27/07/2000 [FL3162]
CONSTITUTIONAL Criminal law Separation of powers – fair procedures – judicial review – mala fides – function of Special Criminal Court – whether certification process by director of public prosecutions improper interference in right to trial by jury – whether DPP’s decision tainted by mala fides – whether applicants had prima facie case of unconstitutional discrimination – whether DPP’s decision subject to review by courts – Offences Against the State Act, 1939, sections 35, 46 and 47 – Prosecution of Offences Act, 1974, sections 2, 3 – Bunreacht na hÉireann 1937, articles 38 and 40 The applicants faced criminal charges in a trial before the Special Criminal Court. They initiated judicial review proceedings seeking to challenge the decision of the director of public prosecutions certifying them for trial before the Special Criminal Court. The relief sought by the applicants was refused by Geoghegan J in the High Court and the applicants appealed. Hamilton CJ, delivering judgment, held that the question of whether the ordinary courts were adequate to secure the effective administration of justice was a political one. The issuing of certificates by the DPP was normally not subject to judicial review unless mala fides could be proved. No
37