Judicial review application dismissed for delay; private chambers hearing upheld as proper judicial discretion.

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

317/01

BETWEEN:

ELIZABETH SHANNON

APPLICANT

AND

JUDGE PATRICK McCARTAN

RESPONDENT

AND

JOHN SHANNON, MALCOLM SHANNON AND GWENDOLINE SHANNON

NOTICE PARTIES

JUDGMENT delivered the 19th day of June 2002, by Keane C.J.

These proceedings arise out of a claim made by the applicant and the third named notice party pursuant to s.117 of the

Succession Act 1965 which was heard in the Circuit Court sitting at Sligo in February 1997 by His Hon. Judge Patrick McCartan.

The proceedings arose out of the will of Hilda Annie Shannon deceased who was the mother of the applicant and the notice

parties. The claim by the applicant that the deceased had failed in her moral duty to make proper provision for her was

dismissed but the claim of the third named notice party was upheld. The second named notice party was ordered to make

provision for the third named notice party by providing a dwelling house and five acres of land within a period of six months from

the date of the order or alternatively a sum of £50,000 to provide a dwelling house and residence for the third named notice

party. It was also ordered that the rights of residence reserved in favour of the applicant and the third named notice party

were to be discharged, but that the applicant was to have a right of residence, during the time she remained unmarried, in the

alternative accommodation to be provided for the third named notice party.

On the 28th August 2001, i.e., three and a half years after the hearing in the Circuit Court, the applicant applied ex-parte to

Finnegan J (as he then was) for inter alia an order of certiorari in respect of the Circuit Court order. The applicant was given

leave to apply for judicial review on notice to the respondent and the notice parties, the sole ground being that set out at B(1)

in the statement of grounds, i.e.,

“(1) The respondent acted outside his jurisdiction and/or contrary to constitutional and/natural justice by conducting a

good part of the hearing in PRIVATE CHAMBERS, where myself, my sister or our solicitor were not present.”

The application was grounded on an affidavit of the applicant in which, at paragraph 9, she deposed as follows:

“I am advised that the above proceedings took place for the most part in the Judge’s PRIVATE CHAMBERS without

myself, my sister or our solicitor present and I further say that by conducting proceedings as above His Hon. Judge

McCarton (sic) gave rise to the suspicion of BIAS in his decision and failed to act within his constitutional confines.”

A notice of opposition having been filed on behalf of the first and second named notice parties, the matter came on for hearing

in the High Court before Kearns J. Three affidavits were filed on behalf of the first and second named notice parties. In the first

affidavit, the solicitor for the first and second named notice parties, Mr. Dermot Hewson, referred to the averment in paragraph

9 of the applicant’s affidavit which has just been cited and said

“I specifically deny this averment. At no stage did Judge McCartan hear any evidence in private chambers. All the

evidence was tendered in court in the presence of the applicant, her sister their solicitor and counsel and in the

presence of my clients, counsel instructed by me.”

In the second affidavit, Mr. Esmond Keane, B.L., who appeared on behalf of the first and second named notice parties in the

Circuit Court, said:

“No evidence was heard in ‘private chambers’ by His Hon. Judge McCartan. I believe Mr. James Dwyer S.C., who

appeared for the applicant and her sister and I went into the judge’s chambers while the case was adjourned for lunch

but no evidence was given or submissions made by either party on that occasion.”

The third affidavit was sworn by Mr. James Dwyer S.C., who said

“At no stage was any evidence given or tendered or heard in chambers by the trial judge and while I have a recollection

of both Mr. Kearns (sic) and myself going into the judge’s chambers at one point while the case was adjourned,

however, no evidence was given or heard on that occasion, nor were any submissions made by either myself or Mr.

Keane in relation to the matter.”

(The typographical error in the spelling of Mr. Keane’s name in the second line of that paragraph was corrected in a subsequent

affidavit.)

No notice to cross-examine any of these deponents was served on behalf of the applicant. Nor does it appear that any

application was made to adduce any further evidence on affidavit on behalf of the applicant in relation to this matter.

In an extempore judgment, Kearns J said that he was satisfied on the basis of the affidavits that nothing improper had

happened and that in any event much time had elapsed since the order in question was made. He accordingly refused the order

sought. The applicant has now appealed to this court from that judgment and order.

I have not the slightest doubt that the High Court was seriously misled when the application was made ex-parte for leave to

apply for judicial review and that on that ground alone the High Court would have been entitled to dismiss the application

brought by way of motion on notice. Any indulgence a court might be disposed to grant to a lay litigant in these circumstances

must be tempered by the fact that the applicant is a qualified solicitor and, even apart from that consideration, would have

been fully aware that her averment on oath that the proceedings “took place for the most part in the judge’s private chambers”

was, to put it no more strongly, seriously misleading. Since, however, that was not the ground on which the High Court

dismissed the notice of motion, I turn now to consider the matters raised in the appeal before this court.

Since this is, in form ,an appeal from the refusal of the High Court to grant leave to apply for judicial review, the appropriate

criterion is whether the applicant has established an arguable case for the granting of such relief.

I am satisfied that, on the evidence before him, the trial judge could not have come to any conclusion other than that the

application for judicial review was wholly without foundation. In order to place in context the course adopted by the judge of

indicating to counsel that he was prepared to meet them in his chambers, the relevant portion of the transcript should be

quoted. The evidence on behalf of the applicant and the third named party concluded at 12.55 and the transcript then

continues:

“Judge McCartan: Would any indication of my mind at this stage help matters over lunch?

Mr. Dwyer: it might well My Lord.

Mr. Keane: Yes My Lord.

Judge McCartan: Well, in general principle, I think a will has to stand unless it is very substantially iniquitous and my

feeling is that as regards Elizabeth Shannon her position is not anything as strong as that of Gwendoline’s and I am

inclined to the view that the testatrix, for whatever reason, did not appreciate perhaps the full extent of her problems

and difficulties in life and certainly if one is to apply the general principle of what is a just and prudent parent put it no

further than this, that they should have been differentiated under the terms of will in my view in view of the

circumstances then known.

“Now, having said that, the right of residence in that house would seem to give both a reasonable comfort and buffer.

However, I am extremely concerned about the evidence I have heard of the degree of enmity that exists to the extent

as has been picked up. It appears the three children of Mr. Shannon are also perhaps involved in this so that if a formula

could be found whereby an alternative accommodation residence could be provided for the sisters to this extent that

Gwendoline clearly will benefit from the close association of her twin sister and in summary, and I am not in any way

pre-empting, I appreciate I have only heard half of the evidence but on as much as I have heard, the option is the life

residency continuing in the dwelling house or an alternative estate providing alternative accommodation at a separate

location somewhat away but still obviously within the community.

“That’s my thinking at this stage. It a very, very difficult case clearly for everyone to deal with.

“Gwen Shannon: Your Honour, if you grant life interest you would put my life in danger and Betty’s because we would be

knocked off and that is the God’s honest truth, we would be knocked off.

“Judge McCartan: It’s all right Mr. McEniry [solicitor for the applicant and the third named notice party]

“Gwen Shannon: You would put our lives in danger.

“Judge McCartan: Mr. McEniry, it’s quite all right.

“Mr. Keane: If your Lordship would rise.

“Judge McCartan: That is the line of thought involved. And if it is in ease of any of the parties, if counsel and lawyers

wish to approach me in my chambers we might tease this out a little more.”

Following some further discussion as to what possible order might be made in view of the general approach the trial judge was

considering he might adopt, Mr. Keane again suggested that the court might rise, whereupon the trial judge said

“Yes, 2 o’clock and over lunch I will be in my rooms if that is of any help.”

It was at that stage that Mr. Dwyer and Mr. Keane went into the judge’s chambers and had what is acknowledged to have

been a relatively brief meeting with him.

It is submitted on behalf of the applicant that even a meeting of this brevity must give rise to a suspicion that justice was not

being properly administered since, as she suggested, something could have been said during the course of the brief meeting

which might have seriously prejudiced her case and that of her sister.

That submission is clearly without any substance whatever. It has for long been the practice on occasions for a trial judge at

any level to invite the legal representatives of the parties to come to his chambers in the absence of the clients during the

course of a case with a view to facilitating the resolution of issues which, if discussed in open court in the presence of the

litigants, might imperil rather than facilitate a just resolution of the case. In a singularly unfortunate family dispute such as was

the subject of the present proceedings, that was clearly an approach which the trial judge was entitled to adopt. This court

must presume, in the absence of evidence to the contrary, that in so acting the trial judge would ensure that the rights of the

parties to the proceedings before him were not affected by the adoption of such a course. Moreover, the court must also

assume that counsel, who were there to protect the interests of their respective clients, would have taken any steps

necessary to ensure that those rights were protected.

I am satisfied that, in the result, there is no ground for concluding that anything improper occurred on this occasion. It only

remains to add that, while the approach adopted by the judge in this case was perfectly appropriate, it is an approach which

should be taken with some degree of caution, depending entirely on the nature of the particular case.

Order 84 Rule 21(1) of the Rules of the Superior Courts states that

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from

the date when grounds for the application first arose, or six months where the relief was sought as certiorari, unless the

court considers that there is good reason for extending the period within which the application shall be made.”

In the present case, the grounds put forward for not moving the application more expeditiously were that the consequences of

the Circuit Court order did not become apparent until much later, that further relevant evidence emerged during subsequent

ejectment proceedings in the Circuit Court and that, in any event, the parties had been advised to proceed by way of appeal to

the High Court. In the case of the applicant, since she was fully aware of the alleged impropriety in the conduct of the

proceedings in the Circuit Court on which she now seeks to rely, there would seem to have been no good reason why she

should not have moved with greater promptness. However, the notice of opposition did not rely on the belated nature of the

application as one of the grounds for resisting the relief sought. I would leave for another occasion the question as to whether,

in such circumstances, having regard to the requirements of Order 84 Rule 21(1) and the repeated insistence of this court that

applications for judicial review must be made in an expeditious manner, the question as to whether, even where delay is not

expressly raised by the opposing party, the court should, of its own motion, raise the matter.

For the reasons already given, however, I am satisfied that the order of the High Court was correct. I would dismiss the appeal

and affirm the order of the High Court.