Supreme Court dismisses motion to set aside judgments and stay costs due to abuse of process and lack of locus standi.

THE SUPREME COURT

Keane C.J.

Murphy J.

Hardiman J.

202/98

BETWEEN

DENIS RIORDAN

APPELLANT

AND

AN TAOISEACH BERTIE AHERN, THE GOVERNMENT OF IRELAND, DÁIL ÉIREANN, THE MINISTER FOR THE ENVIRONMENT, THE

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

JUDGMENT of the Court delivered the 19th October, 2001 by Keane C.J.

This is a motion which has been brought by the appellant in these proceedings seeking a stay on orders for costs made against the

appellant in these proceedings in the High Court and in this court. The applicant further seeks an order setting aside the judgments

and orders of this court of the 19th November 1998 and the 20th May 1999 on the grounds that they were “deliberately defective,

unsafe and unjust”. He further seeks an order reinstating the appeal in these proceedings for hearing by what the appellant describes

as “the full Supreme Court”.

In these proceedings, the appellant had sought declarations that the 19th Amendment of the Constitution Act 1998 - and in particular

the Schedule thereto - purported to allow the Constitution to be amended in a manner other than by a referendum held under Article

46 of the Constitution. That claim was rejected in the High Court and the appellant’s appeal therefrom was dismissed by this court,

the judgment of the court being given by Barrington J on the 20th May 1999. The appellant has sought to have that decision in turn

set aside on the ground that the members of the court had rendered what he had described as “corrupt judgments” and had acted

with “mala fides”. That application was refused by this court (Murray J, McGuinness J and Geoghegan J) on the 29th June 2000.

On the hearing of the present application, the appellant has submitted that the judgment and order of this court dated the 29th June

2000 is defective and should be set aside on the ground that it was delivered by a court of three judges only. He has also submitted

that the present application cannot be heard by a court of three judges only. The court is satisfied that the appellant’s submissions

to that effect are wholly unsustainable.

Article 34 of the Constitution provides inter alia that

"1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution

and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

2. The courts shall comprise courts of first instance and a court of final appeal.”

Article 34.4.1 provides that the court of final appeal thus required to be established is to be called “The Supreme Court”.

Article 36 of the Constitution provides inter alia that

“Subject to the foregoing provisions of this Constitution relating to the courts, the following matters shall be regulated in

accordance with law, that is to say....

iii The constitution and organisation of the said courts, the distribution of jurisdiction and business among the said courts

and judges, and all matters of procedure.”

Pursuant to those provisions of the Constitution, S.1(1) of the Courts (Establishment and Constitution) Act 1961 provided as follows:-

"(1) On the commencement of this Act, the court of final appeal, which in pursuance of Article 34 of the Constitution is to be

called An Chúirt Uachtarach (The Supreme Court)), shall stand established.

(2) The Supreme Court shall be constituted of the following judges

(a) The President thereof, namely an Príomh-Bhreitheamh (the Chief Justice), and

(b) Such number (not being less than four) of ordinary judges (each of whom shall be styled “Bhreitheamh don Chúirt

Uachtarach” (“Judge of The Supreme Court”) as may from time to time be fixed by Acts of the Oireachtas.

(3) The President of the High Court shall be ex officio an additional judge of the Supreme Court.”

That provision was amended by S.6 of the Courts and Court Officers Act 1995 which provided that the court should consist of the

Chief Justice and not more than seven ordinary judges.

Subsections (3), (4) and (5) of S.7 of the Courts (Supplemental Provisions) Act, 1961 as substituted by S.7 of the Courts and Court

Officers Act, 1995 provides that

“(3) The Supreme Court may sit in two or more divisions and they may sit at the same time.

(4) Subject to subsection (5) of this section, the Chief Justice or, in his/her absence, the senior ordinary judge of the Supreme

Court for the time being available, may determine that an appeal to or other matter cognisable by the Supreme Court may be

heard and determined by a division of five or three judges of the Supreme Court, including judges who are by virtue of

subsection (3) or (4) of S.1 of the Principal Act, additional judges of the Supreme Court.

(5) An appeal to or other matter cognisable by the Supreme Court under Article 12 or Article 26 of the Constitution or a

question of the validity of any law having regard to the provisions of the Constitution shall be heard and determined by not

less than five judges of the Supreme Court including judges who are, by virtue of subsection (3) or (4) of S.1 of the Principal

Act, additional judges of the Supreme Court.”

The reference in subsections (4) and (5) to “additional judges of the Supreme Court” is to the provision in S.1(4) of the Courts

(Establishment and Constitution) Act, 1961 enabling High Court judges to sit as additional judges of the Supreme Court in the

circumstances set out in that subsection.

No proceedings have come before the High Court or this court claiming a declaration that these provisions are invalid having regard to

the provisions of the Constitution and they must be presumed by this court to be valid.

Article 34.4.3 of the Constitution provides that

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate

jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as

may be prescribed by law.”

While the power thus given by the Constitution to the Oireachtas to preclude appeals in some cases to this court from the High Court

has been exercised on a number of occasions, there remains vested in the court an extremely wide ranging appellate jurisdiction from

the decisions of the High Court, together with an appellate jurisdiction by way of the case stated procedure from decisions of the

District Court.

Article 12.3.1 of the Constitution provides that

“The President shall hold office for seven years from the date upon which he enters upon his office, unless before the

expiration of that period, he dies, or resigns, or is removed from office, or becomes permanently incapacitated, such

incapacity being established to the satisfaction of the Supreme Court consisting of not less than five judges”

Article 26.2.1 of the Constitution (dealing with the reference of bills to this court by the President) provides that

“The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under

this Article for a decision, and having heard arguments by or on behalf of the Attorney General and by counsel assigned by the

court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty

days after the date of such reference”.

Those are the only provisions to be found in the Constitution which require that a decision of the court is to be given by not less than

a specified number of the members of the court. Their existence is wholly irreconcilable with any alleged requirement that every

matter coming before the court in the exercise of its appellate jurisdiction may only be decided by a court consisting of all the

members of the court for the time being. No such provision exists either in the Constitution or in statute law and, given the extent of

the court’s appellate jurisdiction and the necessity to ensure, in the interests of the proper administration of justice, its reasonably

expeditious and economic despatch, it would be remarkable if any such provision existed.

The claim made in these proceedings for declarations that specified legislation was invalid having regard to the provisions of the

Constitution was heard and determined by a court consisting of not less than five judges of this court as required by S. 7(5) of the

Courts (Supplemental Provisions) Act 1961. No question as to the validity of any law having regard to the provisions of the

Constitution is raised on the present motion.

The motion brought by the appellant will accordingly be dismissed.

On the 22nd June, 1999, this court made an order:

“That the plaintiff be restrained from instituting proceedings against any of the parties to these proceedings.....without the

prior leave of the High Court”.

Since that order was confined in its terms to the institution of proceedings in the High Court, this court proceeded to a consideration

of the motion brought by the appellant.

It is, however, the case that there is vested in this court, as there is in the High Court, an inherent jurisdiction to restrain the

institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to

reopen litigation or to pursue litigation which is plainly groundless and vexatious. The court is bound to uphold the rights of other

citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of

public offices as well as by private citizens. This court would be failing in its duty, as would the High Court, if it allowed its processes

to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation.

The appellant has not merely repeatedly sought to reopen decisions of this court: he has also persistently abused the locus standi

which he has been afforded by the High Court and this court in cases in which he has no direct personal interest in order to make

scandalous allegations, not merely against members of the judiciary, but other persons whom he chose to join as defendants in his

proceedings.

This court is extremely reluctant, as the High Court has been, to restrain the access of any citizen to the courts. The stage has

clearly been reached, however, where the proper administration of justice requires the making of such an order as against the

appellant. Accordingly, in addition to dismissing the present motion the court will, in exercise of its inherent jurisdiction, order that the

appellant be restrained from instituting any proceedings, whether by way of appeal or otherwise, against any of the parties to these

proceedings or the holders of any of the offices named as defendants or against the Oireachtas, the Government or any member

thereof or Ireland (other than in relation to the taxation of costs), whether in the High Court or the Supreme Court, except with the

prior leave of this court, such leave to be sought by application in writing addressed to the Registrar of the Supreme Court.