Court of Appeal allows appeal against High Court striking out access proceedings due to improper service and non-joinder of Circuit Judge.

THE COURT OF APPEAL

Neutral Citation Number: [2019] IECA 124

Record No. 2019/20

Irvine J.

Whelan J.

Kennedy J.

BETWEEN

M

APPELLANT

-AND-

M

RESPONDENT

JUDGMENT of Ms. Justice Mary Irvine delivered on the 1st day of May 2019

1. This is an appeal against order and judgment of the High Court, Murphy J., both of 18th January, 2019. By her order, the High

Court judge struck out an application for certiorari by the appellant on the ground that is had not been properly constituted pursuant

to O. 84, r. 22 of the Rules of the Superior Courts (“RSC”).

Background

2. The judicial review proceedings arise out of access proceedings between the appellant and the respondent in the District and

Circuit Courts. The appellant father had been in a relationship with the respondent mother between 2009 and in or about March 2012.

In 2011, they had a son, J, who, after the breakdown of the relationship, has been in the custody of the respondent. Subsequently,

the parties sought the assistance of the courts to regularise access to J. Both parties aver that since then the matter of the access

order for J has been before the courts on very many occasions.

3. Although the matter had been before the District Court in November 2012, when an access order was made, the parties sought to

address the matter again in late 2015. Following child protection conferences, an order was granted by the District Court on the 8th

December, 2015, stipulating that the father should have access for 5 hours every Saturday. This order was however appealed by the

respondent.

4. The matter next came before the Circuit Court on the 9th March, 2016. After the filing of a section 47 report, various adjournments

and the making of a number of interim access orders, a final hearing took place on the 24th March, 2017 before Her Honour Judge

Berkeley, when access by the appellant to J was ceased, pending re-engagement by Tusla in the matter. After the proceedings

concluded in the Circuit Court on the 16th May, 2017 the appellant applied to the District Court seeking a variation of access order.

That application was then transferred to the Circuit Court due to the fact that the order governing access at that time was that of

the Circuit Court.

5. When back in the Circuit Court, the matter again came before Her Honour Judge Berkeley on two occasions. In lieu of granting

access, the court ordered that a report be compiled which addressed the issue of whether access by the appellant was in the best

interest of the child, J. A report was compiled by a Mr. Brian O’Sullivan, whose recommendations were examined before her Honour

Judge Petria McDonnell on the 14th March, 2018. A further follow-up report was commissioned and the recommendations therein

contained considered by Her Honour Judge McDonnell on the 25th June, 2018. After a two-day hearing, the court granted an access

order.

6. In her order, the Circuit Court judge stipulated, inter alia:-

(a) that access take place every second week on Sunday between 10 a.m. and 5p.m. and when the clock changes to

winter time from 10a.m. to 4p.m.;

(b) that J’s stepsister attend most access occasions;

(c) that the respondent be given the right to reduce or withdraw access at her discretion should she regard it as

necessary in the interest of J. Such discretion to be exercised with due care and consideration;

(d) that phone call access be provided every Wednesday at 6p.m. unless otherwise agreed;

(e) that the respondent has the right, at her discretion, to monitor and terminate telephone contact if she deems the

discussion inappropriate for J;

(f) that all further applications between the parties in relation to access are barred without leave of the Circuit Court;

and

(g) that Her Honour Judge McDonnell retains seisin of the matter.

6. The within proceeding arise from the appellant’s efforts to quash, by way of an order of certiorari, the aforementioned order.

High Court

7. The appellant was granted leave to apply for judicial review on the 26th September, 2018. In his ex parte docket, the appellant

sought, inter alia, an order of certiorari, quashing Her Honour Judge McDonnell’s order and for the court to remit the matter back to

the Circuit Court. The appellant joined the respondent in this appeal as the named respondent in the judicial review proceedings, but

he did not join the Circuit Court Judge as a co-respondent. Relevant also, in the context of this appeal, is the fact that the appellant

failed to serve copies of the proceedings on the registrar of the Circuit Court wherein the order under challenge had been made.

8. The statement of grounds sets out the basis upon which the appellant seeks his relief. At paras. (E)3 and (E)4, it reads:-

“3. The order of the Circuit Court Judge granted access every second Sunday but gave the respondent herein the right to

reduce or withdraw all such access at her discretion should she regard it as necessary in the interests of the child. In so

doing the Circuit Court Judge made an order which was of no legal effect and/or a nullity, and/or in access of her

jurisdiction. Furthermore, the said order was irrational or contrary to law in being grounded upon a determination that

welfare of the minor child of the applicant and respondent herein required that he have access to the appellant, the

applicant herein, in terms provided for, but in permitting the respondent herein to act in a manner which set the said

orders at nought. Furthermore, in so ordering the Circuit Court Judge abdicated her responsibility to make binding orders

providing for such access between the child of the applicant and respondent herein and the applicant as his welfare

required.

4. The orders of the Circuit Court Judge were further made in excess of jurisdiction in directing that the Circuit Court

Judge who made the said orders, Circuit Court Judge Petria McDonnell, was to retain seisin of the said District Court

appeal matter and in ordering that all further applications between the parties in relation to access be barred without

leave of the Circuit Court.”

9. In his grounding affidavit, the appellant gives further details as to the basis upon which he seeks the relief. At para. 12 of his

affidavit, the appellant averred:-

“12. I say and believe that when the matter was before Judge McDonnell on the 25th day of June 2018 that I was not

given a proper hearing as the judge would not allow me to present my case fully nor allow me to cross-examine some of

the witnesses. I say however, for the sake of clarity, that I bring the application herein on the grounds of the defects

which I say, believe and am advised exist in the order made by the Circuit Court that day and not grounded on the

manner in which the application was heard.”

10. After setting out excerpts of the Circuit Court order, the appellant gives details concerning the grounds set out in the statement

of grounds. At para. 17 he averred:-

“17. Firstly, the Circuit Court Judge purports therein to retain seisin of the matter, a District Court appeal, into the future

by way of review. I say and believe and am advised that issues relating to the welfare of children are always open to

review. I say and believe and am further advised however that it is not within the jurisdiction of the Circuit Court, having

decided an appeal from the District Court, to seek to oust or preclude the jurisdiction of the District Court to hear such a

review or to further deal in any way with what are District Court proceedings.”

11. At paras. 18 to 20 he continued, addressing the matter of discretion:-

“18. Secondly, and I say and believe most significantly, I say that provisions of the order herein are in effect a nullity in

so far as it might provide a basis in law to give me any access to my son or, even more importantly, my son any access

to or contact with me. I say and believe the order made by Judge McDonnell is in effect an order giving me no access at

all.

19. I say and believe that in deciding issues in respect of what access and contact a child is to have with its non-

custodial parent that the Circuit Court was obliged to have considered the welfare of [J] as the paramount consideration.

I accept that it was within the jurisdiction of the Circuit Court Judge to make an order for access which was less than

recommended by the expert reports and I also am advised that in certain extreme situations it would be open to the

Judge to conclude that it was in the interest of the child to have no access to or contact with a parent. I say and

believe however that in the instant case the judge of the Circuit Court concluded that it was necessary for [J] that he

have access, with [me] [sic] even if that access was less [than] I wished for or believed appropriate. I say and believe

and am advised that having done so and having made an order to that effect is not within the jurisdiction of the Circuit

Court to order that such access could be denied at any stage by the custodial parent at her sole discretion. I say and

believe that this is effect is to deprive the order, made in the interests of the child, of any legal effect and, furthermore,

was a total abdication by the court of its duty, having decided what level of access and contact was necessary for the

child, to ensure that this access and contact occurred.

20. I say and believe that if the Circuit Court Judge believed that it was necessary for [J]’s welfare that he have access

to your deponent, and I sway and believe that it is apparent from the terms of the order that she did, it is not within her

jurisdiction to give a veto on that access to the respondent and the more so where the respondent is opposed to contact

between our son and your deponent. I say and believe that in those circumstances it was and is predictable that a

significant amount of the access provided for by the order, which I believe was modest in any event, would never occur. I

say that in fact the respondent herein stopped access once in July and again on the last two occasions in September.”

12. In relation to the treatment of Mr. O’Sullivan’s report at the hearing the appellant averred at para. 22:-

“… I say and believe that Judge McDonnell was entitled not to accept the recommendations of Mr. O’Sullivan but I do not

believe that she was exercising her jurisdiction in a fair and impartial manner in excluding him from having any involvement

in the further report which she contemplated. I say and believe that in all the circumstances it would be appropriate that

any further hearing of the family law proceedings in respect of [J]’s contact with your deponent not be dealt with by

Judge McDonnell.”

13. On 18th January, 2019, the proceedings came on for hearing before Murphy J. As is evident from the transcript, at the start of

the hearing, the judge raised her concerns regarding the constitution of the proceedings. After an exchange with counsel on the

matter, and after a brief adjournment to allow the parties to enquire about the legal position in that regard, the judge concluded that

the appellant should have joined the judge, at the least anonymously, as defendant and was wrong to name the respondent as the

respondent in the judicial review proceedings. The proceedings were struck out on the ground that they had been improperly

constituted pursuant to O. 84, r. 22.

14. What follows is the ruling of the High Court judge:-

“It appears to me that this is – judicial review is a public law remedy that any person – the summons has to be served on

all persons directly affected. The challenging of a court order affects the general good as well as the interests of the

parties involved in the proceedings. It seems to me that the amendment of the Rules of the Superior Courts in 2015 was

designed and effects the change such that the previous practice of naming particular judges when their orders were being

judicially reviewed has been abolished, unless an allegation of mala fides or misconduct against that particular judge has

been made, as a judge of the Circuit Court or a judge of the District Court as may be the case. That, of course, means

that when they are served the application for judicial review must therefore be served. Perhaps it’s the courts service on

the civil side, I’m not binding myself to that, but certainly one would expect it to be served on the Chief State Solicitor’s

Office so that they can take such view as they may take in relation to the matter before the court, and to do otherwise

is really for the court to embark in a public law setting on a private law issue, and the court is not disposed to that.”

15. Of particular significance in the context of this appeal is the fact that prior to delivering the aforementioned ruling the High Court

Judge had determined that the provisions of O.84, r. 22(2A) RSC required an applicant, even in proceedings brought to challenge an

order of a Circuit or District Court judge where no allegation of mala fides or misconduct was advanced, to join that judge as a named

respondent to the proceedings, albeit on an anonymous basis. Thus, she determined that the proceedings were not properly

constituted.

The Appeal

16. By notice of appeal dated the 25th January, 2019, the appellant seeks to set aside the order of the High Court (Murphy J.). The

principal grounds of appeal as set out in the notice and submissions can be summarised as follows:-

(a) The High Court Judge erred in law when she dismissed the application on the ground that it had not been properly

constituted by reason of the fact the presiding Circuit Court Judge had not been joined as a respondent in the case, that

the judge had not been anonymously joined and that the respondent had been the sole respondent in the High Court

proceedings.

(b) The judge misconstrued the stipulations set out in O. 84, r. 22(2A) RSC, that a judge must be anonymously joined as

a respondent where no mala fides or misconduct has been asserted, this being the case in this appeal. In such a case,

the correct respondent is the party who was the respondent in the High Court, not the judge.

(c) The dictum of Humphreys J. in Hall v. Stepstone Mortgage Funding Ltd. [2015] IEHC 737 applies in that the onus to

defend the proceedings falls on the original respondent and not the judge, safe in circumstances where flagrant and

deliberate allegations are raised against the reviewed judge.

(d) Order 84, r.22(2A) RSC is to be interpreted in line with the dictum in O.F. v. O’Donnell [2012] 3 I.R. 453, a case

explaining the rationale for the rule change in 2015.

17. The respondent’s submissions and grounds of opposition may be summarised as follows:

(a) The appeal should be dismissed on the grounds that the appellant has failed to serve a copy of the pleadings on the

county registrar or the circuit family court registrar in accordance with O. 84, r. 22(2A)(c) RSC. Humphreys’ J. dictum in

Hall emphasises the fact that such service is vital. It allows the Chief State Solicitors Office to become aware of the

proceedings and take steps it deems necessary. This also retains the public law aspect of an application for judicial

review.

(b) The High Court Judge was correct when she dismissed the application herein on the grounds that the proceedings had

not been properly constituted due to the fact that the presiding Circuit Court Judge had not been joined as respondent,

that the judge had not been anonymously joined and that the respondent had been the sole respondent in the High Court

proceedings.

(c) In light of the fact that the matter pertains to a child’s welfare the judicial review proceedings have become moot

given the passage of time.

What Effect Does Order 84, rule 22(2A) RSC have?

18. The general rule in relation to who needs to be included in the proceedings as respondent in judicial review is that any party

against whom relief is sought or whose decision is to be reviewed should be included in the proceedings as such. Service of the notice

of motion or the summons is similarly regulated. Order 84, r.22(2) reads:-

“(2) The notice of motion or summons must be served on all persons directly affected.”

19. Sub-rule (2A), however, constitutes an exception to that rule. It says:

“(2A) Where the application for judicial review relates to any proceedings in or before a court and the object of the

application is either to compel that court or an officer of that court to do any act in relation to the proceedings or to

quash them or any order made therein:-

(a) the judge of the court concerned shall not be named in the title of the proceedings by way of judicial review,

either as a respondent or as a notice party, or served, unless the relief sought in those proceedings is grounded on

an allegation of mala fides or other form of personal misconduct by that judge in the conduct of the proceedings

the subject of the application for judicial review such as would deprive that judge of immunity from suit,

(b) the other party or parties to the proceedings in the court concerned shall be named as the respondent or

respondents, and

(c) a copy of the notice of motion or summons must also be sent to the Clerk or Registrar of the court concerned.”

20. Therefore, it is clear that in circumstances where a determination of the Circuit or District Court is to be judicially reviewed, the

judge must not be named, neither by name or anonymised, as respondent and that in its place, as substitute for the judge, the other

party or parties in the Circuit or District Court should be joined as respondents – unless allegations of mala fides or other misconduct

against the presiding judge form part of the grounds of review.

21. What must follow is that the other party is the legitimus contradictor, and it is up to them to decide whether or not they wish to

support the correctness of the decision sought to be challenged. This is so in spite of the fact that they are not the party against

whom relief is sought or who made the decision which is sought to be reviewed. This is an exception to the original rule. In Hall,

Humphreys J. held similarly:

“A judicial review action must relate to an underlying public law function being carried out by somebody, but not

necessarily by the respondent. It is not the law that the respondent must itself be a public law entity. In the present

case, the action clearly relates to a public law function, namely an order made by a judge of the Circuit Court. Order 84,

r. 22(2A)(a) says expressly that “the judge of the court concerned shall not be named in the title of the proceedings” .

However, some entity should normally be a legitimus contradictor, and in a case where the action relates to a challenge

to a judicial proceeding, that entity is the other party to the underlying proceeding. The onus falls on such a party to

defend the decision made by the court, if it wishes to do so, and that is what Mr. Hall is giving [the respondent] the

opportunity to do.”

22. This exception finds its limits, however, where allegations of mala fides or other misconduct against the presiding judge underpin

the application for judicial review. The rationale for this is that, if such an allegation is made against a judge, they must be named as

a respondent and served with the proceedings so that they can participate in the proceedings to defend their good name.

23. It is nonetheless mandatory that in all proceedings wherein it is sought to challenge an order made by a judge of the Circuit Court

or District Court that the proceedings be served in accordance with O. 84, r. 22 RSC regardless of whether or not any allegation of

mala fides or misconduct is made. This provision is particularly important having regard to the rule change in 2015 which removed the

requirement to join as a respondent to the proceedings the judge who made the order under challenge. It is only by service of copies

of the proceedings that a judge may determine whether they ought, by reason of the nature of the nature of the claim advanced, to

have been added as a respondent to the proceedings.

24. In the present appeal, there is no an allegation of mala fides or misconduct, nor has the respondent sought to demonstrate that

such can be found in the appellant’s grounds of appeal or affidavit. In fact, at para. 12 of his affidavit, the appellant specifically avers

that his grievances are not directed at the manner in which the proceedings were held but go to the substantive issues raised in the

order. Furthermore, his core complaints concerning the granting of discretion to the respondent with regards to the termination of

access or telephone contact and the allegation that the order had been made in excess of jurisdiction are evidently substantive and

not grounded in the judge’s conduct.

25. Therefore, the appellant had been correct to join the respondent as respondent in the judicial review proceedings and not the

Circuit Court Judge pursuant to O. 84, r. 22 RSC. The appellant was also correct not to join the Circuit Court Judge, anonymously or

otherwise, as a respondent to the proceedings given that O.84, r.22 (2A)(a) RSC specifically precludes such joinder given the

absence of any alleged mala fides or misconduct. That is not to say that the appellant was not obliged to serve the registrar of the

Circuit Court with copies of the proceeding by reason of the mandatory provisions of O. 84, r. 22(2A)(c) RSC.

Notifying the County Clerk or Circuit Family Registrar

26. Concerns have been raised by the respondent on appeal that the failure on the part of the appellant to serve the county clerk or

registrar should mean that the proceedings have not been properly constituted. Reference is made not only to O. 84, r. 22(2A)(c)

RSC, but also to para. 16 of Humphreys’ J. dictum in Hall. There, the judge observed:-

“In any event, if leave were to be granted in a particular case, the applicant is required to serve the District Court Clerk

or County Registrar with a copy of the judicial review papers, essentially for information (r. 22(2A)(c)), which provides a

channel from the Clerk or Registrar to the Chief State Solicitor if it is thought for any reason that there is anything further

that can be contributed by the State to any particular judicial review proceedings. If so, it would be open to the Attorney

General to intervene in proceedings of which she is thus made aware, but that is a matter for her…”

27. The first aspect that needs to be addressed is the fact that this argument was not advanced by the respondent in the court

below. The position adopted by the respondent, when engaged by the High Court Judge regarding the failure of the appellant to join

the Circuit Judge as a respondent to the proceedings, albeit on an anonymised basis, was to agree with the judge that the

proceedings were misconceived because of that non-joinder. The appellant never sought to contend that the proceedings were not

properly constituted because they simply had not been served on the Circuit Court registrar. Neither was this issue raised in the

respondent’s notice, wherein she maintained the position as a matter of law that the High Court Judge was correct in concluding that

the proceedings were misconceived by reason of the fact that the Circuit Judge had not been actually joined as a respondent to the

proceedings. The consequences of the failure of the appellant to serve the proceedings on the registrar of the Circuit Court is an

issue that emerged for the first time in the course of the respondent’s written submissions.

28. Thus, the respondent seeks to make an argument in this court which was not advanced in the court below. And appellate courts

have been reluctant to accept new arguments on appeal. This is because to do so would deprive the other party of an appeal they

are constitutionally entitled to but it is also a natural consequence of the review function of the appellate court. Thus only in

exceptional circumstances will the court admit such new arguments, c.f. Gibb v. Promontoria (Aran) Ltd. [2018] IECA 95.

29. In the present case the complicated position in which this court finds itself arises from the fact that it was not one of the parties

in the court below that raised the issue as to whether the proceedings were or were not properly constituted, rather it was the court

itself. Therefore, at the High Court hearing, the parties were only able to make what I will describe as somewhat “ad hoc” rather than

prepared submissions. In my view the rather unique nature of what took place in the High Court would justify this court entertaining a

new legal submission even though it was not raised at first instance. However, whether I am correct in my view that such an

approach should be admitted does not need to be settled as it is clear that this court must apply O. 84, r. 22(2A)(c) RSC when it

applies the law, regardless of whether it has been submitted by one of the parties. It would be wholly irrational to simply disregard it

and only apply the sub-rule partially.

30. From the evidence it is clear that the appellant had not complied with sub-rule (2A)(c) at the time the proceedings were listed for

hearing in the High Court. The registrar of the Circuit Court had to be served with copies of the proceedings in order that the court

might have jurisdiction to determine the proceedings between the named parties. However, no objection had been raised by the

respondent by reason of that particular defect. And, had it only been the failure of the appellant to serve copies of the proceedings

on the Circuit Court Registrar which had concerned the High Court Judge concerning the Court’s jurisdiction, rather than the non-

joinder of the Circuit Judge as a named respondent on an anonymised basis, that failure would not have been fatal to his claim. The

High Court Judge could have adjourned the hearing to allow the proceedings be served. She would, however, have had to grant the

applicant an extension of time to allow service be lawfully effected given that the time for so doing under O. 84, r.22(3) RSC had at

that time expired. Instead of that she dismissed the proceedings on a legally incorrect premise, thus leading to an unnecessary

appeal. This is particularly unfortunate having regard to the extent to which these parties have required access to the courts to deal

with their respective rights to their son, J. There was nothing to be achieved by striking out the proceedings. It is indeed unfortunate

that the order made has added to the costs to be borne by the parties. Of even greater regret is the fact that the order dismissing

the proceedings has delayed the determination of a legal issue that the court, when it granted leave for the issue of the within

judicial review proceedings, clearly felt was arguable.

31. Given the error made by the High Court Judge, I would allow the appeal and I would propose that the proceedings be remitted

back to the High Court for hearing subject to the service of the proceedings on the Registrar of the Circuit Court in accordance with

O. 84, r. 22(2A)(c) RSC. Furthermore, in order to give effect to the outcome of this appeal, I would also favour granting the appellant

a period of seven days, from the perfection of this court’s order, within which service of the within proceedings might be effected on

the registrar of the Circuit Court.

Conclusion

32. The proceedings had not been improperly constituted and the respondent is the correct legitimus contradictor pursuant to O. 84,

r. 22(2A) RSC. The High Court judge was in error in concluding that the Circuit Court judge had to be joined as a respondent, albeit on

an anonymous basis, to the proceedings. It is correct that the service of the proceedings did not accord with O. 84, r. 22(2A)(c) RSC

but that error, had it been identified, would not have proved fatal to the proceedings and could have been rectified without the

requirement that the proceedings be dismissed.

33. I would allow the appeal and would remit the proceedings back to the High Court for hearing subject to the service of the

proceedings on the registrar of the Circuit Court in accordance with O. 84, r. 22(2A)(c) RSC. Finally, in order to give effect to the

outcome of this appeal I would grant the appellant a period of seven days, from the perfection of this court’s order, within which to

effect service of the proceedings on the registrar of the Circuit Court.