Judicial review application dismissed as out of time; applicant failed to establish arguable grounds for challenging Circuit Court conviction.

THE HIGH COURT [2025] IEHC 525 Record No. 2023/1037 JR

BETWEEN

PATRICK JOHN RIGNEY APPLICANT AND LOCAL AUTHORITY OFFALY COUNTY COUNCIL RESPONDENT

RULING of Ms. Justice Siobhán Phelan, delivered on the 3rd day of October, 2025.

INTRODUCTION

1. This matter came before me on the 24th of July, 2025, by way of application for leave to proceed by way of judicial review on notice to the Respondent, the local authority with statutory functions under provisions of the Dog Breeding Establishment Act, 2010 (hereinafter “the 2010 Act”).

2. In these proceedings, the Applicant, a litigant in person, seeks an Order of Certiorari quashing the decision of the Circuit Court made on the 24th of May, 2023, in respect of the Applicant’s appeal against conviction orders recorded against him in respect of two charges for offences under the 2010 Act in the District Court. The District Court had recorded a fine on each charge in the sum of €500.00 on the 18th of July, 2022.

3. The appeal against conviction on the charge that the Applicant, on the 4th of November, 2021, had failed to take such measure as specified in a Closure Notice dated the 1st of October, 2021, served pursuant to ss. 21(3) contrary to ss. 6 and 21(7) of the 2010 Act, was allowed. This charge was dismissed.

4. The Circuit Court proceeded, however, to find the Applicant guilty of operating a dog breeding establishment on the 30th day of September, 2021, at a time when there were more than six bitches who were capable of breeding at the premises at Circular Road, Daingean, County Offaly and without the premises being registered on the register maintained by the Respondent pursuant to the provisions of the 2010 Act contrary to ss. 6 and 22 of the 2010 Act. The fine of €500.00 payable within six months was affirmed on the 24th of May, 2023.

BACKGROUND

5. The Applicant operates a dog kennels. It was common case that his kennels were not registered with the local authority as a dog breeding establishment on the 30th of September, 2021, when an inspection occurred. At that time, the Applicant held a certificate of registration as a seller or supplier of pet animals but not a registration certificate confirming registration as a dog breeding establishment. Following inspection, one dog was taken for veterinary examination by an ISPCA Officer.

6. A report was generated on foot of this inspection by the County Veterinary Officer, who had attended for the inspection with the Dog Warden for the Respondent and a Kennel Assistant with Offaly County Pound. The Report noted, inter alia, that there were a total of 12 adult female dogs (deemed capable of breeding) at the Applicant’s premises.

The Report also noted the presence of 14 male dogs and 31 pups ranging from 4 to 14 weeks who were not microchipped and a further 6 meril coillie pups that were microchipped. The Report recorded an intention to serve a closure notice due to welfare concerns apparent and an intention to recommend prosecution for operating an unregistered dog breeding establishment to be instigated by the Respondent.

7. A closure notice dated the 1st of October, 2021, was served on the Applicant pursuant to s. 21(3) of the 2010 Act on the recommendation of the Local Authority Veterinary Officer and on foot of Chief Executive Order dated the 1st of October, 2021, pursuant to powers under s. 154 of the Local Government Act, 2001 (as amended). The Closure Notice contained, inter alia, a requirement to reduce the numbers of females capable of breeding to five or less within three weeks in the interests of the welfare of the breeding females. The Applicant was advised that an appeal could be taken to the District Court.

No appeal was lodged against the said Closure Notice.

8. On foot of a report from the dog warden that the Applicant had failed to comply with the requirements of the Closure Notice, the Local Authority Veterinary Inspector recommended that the Respondent instigate a prosecution against the Applicant under the 2010 Act for the offence of operating an unregistered dog breeding establishment.

He also recommended that legal advice be sought as to whether contravention of the Closure Notice might be prosecutable. The issue of legal proceedings under ss. 21(7)

and 22 of the 2010 Act was subsequently ordered by the Director of Services of the Respondent pursuant to s. 154 of the Local Government Act, 2001 (as amended).

9. By summons dated the 2nd of March, 2022, the Applicant was required to appear before the District Court sitting at Tullamore District Court on the 16th of May, 2022 at 10.30 a.m. to answer charges in respect of two offences under the 2010 Act, namely, operating a dog breeding premises without being entered on the Register and failing to take measures specified in the Closure Notice dated the 1st of October, 2021. This was a second summons as an earlier summons had issued but had not been pursued. The Applicant was advised that this earlier summons could be disregarded by letter dated the 7th of March, 2022.

10. The summons stated on its face that it issued out of Tullamore District Court Office and the clerk was identified as the appropriate District Court Clerk in that office. The summons bore initials endorsed in manuscript on its face beside the space for the District Court Clerk’s name.

11. The matter proceeded before the District Court on the 18th of July, 2022. The Applicant was in attendance and represented himself. Evidence was heard from the dog warden, the County Veterinary Officer and the Kennel Assistant with Offaly County Pound who had attended for the inspection with the Dog Warden for the Respondent.

12. Each of the prosecution witnesses were cross examined on their evidence by the Applicant. The Applicant was repeatedly reminded by the District Court Judge that the prosecution was confined to a failure to register and to comply with the Closure Notice.

It was several times pointed out that the Court was not being asked to determine any animal welfare issue and evidence as to welfare issues was therefore irrelevant.

13. The Dog Warden gave evidence that when she attended for further inspection on the 26th of October, 2021, there were still nine female adults at the premises, two of whom were neutered or old dogs that would not be capable of breeding.

14. The Applicant in turn gave sworn evidence in response to the charges. He made a range of arguments including in relation to the ownership of the premises where part of the property was in his mother’s name and part in his, the validity of the Closure Notice by reason of the presence of a digital signature and the validity of the summons on the basis that it had not been signed by the District Court Clerk. The learned District Court Judge informed the Applicant that it did not matter who owned the parcels of land when they comprised part of the same “establishment” for the purpose of the 2010 Act.

15. In ruling on the application, the District Court Judge referred to DPP v. Clein [1983] ILRM 76 and Payne v. DPP [2006] IEHC 34, finding that any defect in the summons ceased to have effect when the accused person appeared to answer the charge. He also found against the Applicant in respect of his objection in relation to the signing of the Closure Notice. He found that the first charge in relation to the operation of a dog breeding establishment was a relatively simple matter which turned on whether he had more than six breeding bitches at the material time without being registered. In his ruling, he noted that it was not in dispute that the Applicant had more than six and it had been established that he was not registered as a dog breeding establishment.

16. On the second charge, the District Court Judge expressed himself satisfied with the evidence of service of the Closure Notice. He was further satisfied that there had been non-compliance with the terms of the Notice before proceeding to convict on both charges.

17. While the Applicant was convicted of both offences in the District Court on the 18th of July, 2022 and the matter was adjourned for sentence, he subsequently lodged an appeal against conviction.

18. The appeal came on for hearing before the Circuit Court sitting in Tullamore on the 24th of May, 2024. Again, the Applicant represented himself before the Circuit Court.

19. In response to the issue raised with regard to the District Court Clerk’s name, the solicitor for the Respondent stated:

“…and there is a signature, it seems to be, I appreciate, Judge, it is in the form of a squiggle, but it seems to be a signature of the District Court Office at Tullamore, County Offaly. The position, Judge, I say is effectively, three-fold:

firstly, the Counsil as prosecutor cannot warrant what the District Court office does or what the District Court Clerk does. The signature that’s applied on the face of the summons is the signature of the District Court clerk, sorry, that is the clerk of the District Court. And that is the position, I can’t go behind that or question it. It would certainly be a matter for Mr. Rigney if he seeks to raise this to have subpoenaed the District Court Clerk in order to prove that it was not the District Court clerk’s signature, if that indeed is what he is saying. It’s not clear whether he made any inquiries with the District Court as to whether or not this was the clerk’s signature or who it was, who is the identifying person for that signature. The second point, judge, is that there is absolutely no prejudice to Mr. Rigney arising from this, and the third point is he appeared in the District Court on foot of the summons, and it was dealt with accordingly.”

20. In ruling on the application, the Circuit Court Judge stated:

“the jurisprudence would indicate that once you appear in court, that cures any defects with the summons….. the summons says clearly on the page the complaint was made to the District Court clerk in Tullamore… it’s quite clear from the face of it. I really don’t think this is a great point, to be honest with you, Mr. Rigney, I don’t think you’re prejudiced in the slightest by it, and I’m satisfied that the proceedings are properly before the Court, so I think we just ought to get on with it”.

21. Evidence was called on behalf of the Respondent from two witnesses and a further witness was tendered for examination. The Applicant cross-examined each of the three witnesses. While he did not give sworn evidence, the Applicant addressed the Court at some length and was afforded an opportunity to make representations on his own behalf.

22. In his oral representations before the Circuit Court, as recorded on transcript exhibited in these proceedings, the Applicant accepted that there were more than five females on the premises on the date of inspection but maintained that he only bred from five of them. He identified several bitches who he said had problems which meant he would not breed from them (“the little pom she had uterus problem, never had a pup, couldn’t breed from her” and a French bulldog “she lost all her pups…a vet advised me don’t breed from her, she’ll end up getting pyometra, because she has a uterus problem”). At separate instances during his exchanges with the Circuit Court Judge, the Applicant acknowledged that he had more breeding bitches on the date of the inspection than he was entitled to have, frankly telling the Court “I’m not denying that” but urging on the Court that he had complied with the Closure Notice stating, “that’s the important thing”.

23. Later in his representations he referred to two collie pets, appearing to maintain that as they were not used for breeding this meant that they were not captured by the requirement to register where there were six female dogs capable of breeding. In brief, while the Applicant admitted having more than five bitches on the premises which were capable of being used for breeding, he maintained that he was not operating a dog breeding establishment because in fact he only bred from five.

24. The appeal was successful in respect of the charge that the Applicant failed to comply with the Closure Notice. In allowing the appeal, the Circuit Court Judge stated:

“…I would have reasonable doubt in relation to that, and I have to give the benefit of the doubt to Mr. Rigney and allow the appeal in respect of compliance with the closure notice.”

25. Although the Applicant was successful in respect of one charge, the conviction on the charge of operating a dog breeding premises without being registered with the local authority contrary to s. 22 of the 2010 Act was affirmed by the Circuit Court.

26. In his ruling the Circuit Court Judge observed:

“…the way I see it is this: it’s very simple. I’m satisfied that they have proved their case in relation to you running an unregistered dog breeding establishment, on your own admission that there were more than six breeding bitches on the premises when the inspection was carried out.” (Circuit Court Transcript, pp. 59-60, lines 34 and 1-3).

PROCEEDINGS

27. The application first came before the High Court on the 16th of October, 2023, by way of an application for leave to proceed by way of judicial review on foot of an ex parte docket, the Statement of Grounds and verifying affidavit having been filed in the Central Office on the 16th of September, 2023.

28. While opened to the Court, the leave application was not determined on the 16th of October, 2023. It appears that the papers before the Court were incomplete on that occasion. The matter was adjourned on several occasions without leave being granted in circumstances in which it is apparent the papers were not considered to be in order.

Affidavits sworn by the Applicant during the adjournment period were not filed contemporaneously with their swearing and considerable confusion arose with regard to the exhibits to these affidavits.

29. By Order made on the 2nd of December, 2024, Gearty J. directed that exhibits missing from the papers should be added to the documentation before the Court and the leave application should proceed on notice to the Respondent. On foot of this order, a Notice of Motion issued returnable to the 21st of January, 2025.

30. Multiple further affidavits were sworn by the Applicant on various dates but were filed together on the 27th of February, 2025. There is significant unhelpful repetition in these affidavits, a lack of focus and a scatter gun approach to a wide range of complaints, some of which were not previously made, including issues in relation to reputational damage and complaints in relation to the photographs relied upon by the Respondent, albeit it was not contended that the photographs were of a different premises.

31. Correspondence exchanged with the Applicant by the Respondent’s solicitor in accordance with court directions sought to identify some 57 exhibits referred to by the Applicant in seven separate affidavits but was only partially successful in identifying the papers relied upon by the Applicant and properly in evidence in moving this application.

32. The Respondent’s solicitor swore a replying affidavit on the 14th of March, 2025, in which she primarily focussed on difficulties with the Applicant’s papers but also raised, inter alia, a time issue and the non-justiciability in judicial review proceedings of some of the issues ventilated on affidavit.

STATUTORY FRAMEWORK

33. The 2010 Act regulates anyone keeping six or more female dogs which are more than six months old and are capable of breeding.

34. Under s. 2 of the 2010 Act, a “dog breeding establishment” means a premises at which bitches are kept, not less than 6 of which are (a) more than six months old, and (b)

capable of being used for breeding purposes (other than a local authority dog pound).

An “operator” means, in relation to a dog breeding establishment, the person who owns or manages the establishment or is otherwise responsible for the running of the establishment.

35. Pursuant to ss. 2 and 9(2) of the 2010 Act, any premises that has six or more female dogs over six months of age and capable of breeding must apply to the local authority for registration as a dog breeding establishment. If a dog breeding establishment is successfully registered, the operator will be issued with a certificate containing the information entered on the Register (s. 9(11). The certificate of registration should be displayed in a prominent position at the establishment (s. 9(12)). A certificate will not issue where the local authority is of the opinion that the premises is not suitable for the operation of a dog breeding establishment (s. 9(6)(b)).

36. Certain procedural safeguards are provided which safeguard a right to make representations during the decision-making process where a negative decision is in contemplation. A right of appeal exists under s. 11 of the 2010 Act in respect of the refusal to register. An annual fee is payable to the local authority by way of a dog breeding establishment charge pursuant to s. 14 of the 2010 Act. The duties of the operator of a dog breeding establishment are prescribed under s. 15 of the 2010 Act and these duties require the operator to ensure, inter alia, suitable accommodation and adequate food, drink and bedding and that all reasonable measures are taken to prevent and control the spread amongst dogs of infections or contagious diseases and to limit the number of litters of pups a bitch breeds.

37. Section 16 of the 2010 Act imposes obligations in relation to the identification of dogs (through microchipping). The Act further provides for the appointment of authorised persons by the local authority under s. 18 and such authorised persons may be vested with the powers prescribed under s. 19 in relation to entry and inspection of premises and records.

38. The 2010 Act makes further provision for the service of improvement notices (s. 20) by the authorised person and any such notice may be appealed to the District Court, which appeal has suspensive effect. Section 21 provides for the making of a closure notice on stated grounds relating to threat to public health or animal welfare. Section 21(3)

requires the publication by the local authority of any such notice. The operator has a right of appeal not later than 7 days after the service of the notice (or such longer period as the District Court may allow for good and sufficient reason) to the District Court under s. 21(4) of the 2010 Act. It is open to the local authority to withdraw a closure notice under s. 21(6) of the 2010 Act.

39. Under s. 22(1) of the 2010 Act the owner, occupier and operator of a dog breeding establishment that is not registered in the register maintained by the local authority in whose functional area the dog breeding establishment is situated shall be guilty of an offence.

40. The Courts (No. 3) Act, 1986 (as amended by s.49 of the Civil Liability and Courts Act, 2004 and s. 2 of the Courts Act, 2017) (hereinafter “the 1986 Act”) provides for the issue of summonses. In material part, s. 1(6)(e) of the 1986 Act requires that the name of an appropriate District Court Clerk shall be specified on each summons. Section 1(9) of the 1986 Act provides for a presumption that a document purporting to be a summons shall, unless the contrary is shown, be deemed to be a summons duly applied for and issued and the date specified in the summons as being the application date is the application date.

TEST FOR APPLICATIONS FOR LEAVE ON NOTICE

41. The relevant rule to be applied on an application for leave (save for special statutory exceptions) to proceed by way of judicial review is that set out in O.84, r.20 of the Rules of the Superior Courts, 1986 (hereinafter “RSC”). The application of the test was considered by the Supreme Court in its decision in G v. Director of Public Prosecutions [1994] 1 I.R. 374. Unlike here, the Supreme Court in G v. DPP was dealing with an unopposed application where leave had been refused in the High Court. Finlay C.J., with whom the other two judges agreed, set down the test in the following terms at pp.

377 to 378:

“An applicant must satisfy the court in prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:- (a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4). (b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review. (c) That on these facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks. (d) That the application has been made promptly and... within the ...

[relevant] time limits... (e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be in order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, in all the facts of the case, a more appropriate method of procedure.”

42. In Gordon v Director of Public Prosecutions [2002] 2 I.R. 369 this test was described as a “low threshold”, per Fennelly J. at p. 372. In Esmé v. Minister for Justice and Law Reform [2015] IESC 26 (Unreported, Supreme Court, Clarke, Laffoy and Charleton JJ., 19th March, 2015) Charleton observed:

“Any issue of law can be argued: but that is not the test. The point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of rational preliminary analysis, ultimately have a prospect of success”.

43. More recently, in O’Doherty & Waters v. Minister for Health & Ors. [2022] IESC 32, the Supreme Court revisited the test for leave to seek judicial review. In his judgment, O’Donnell CJ. stated that the test is:

“In essence, the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction. It must be a case that has a prospect of success (otherwise it would not be an arguable case) but does not require more than that. While, inevitably, individual judges may differ on the application of the test in individual cases at the margins, the test itself is clear.

This test – it must be stressed – is solely one of arguability: it is emphatically not a test framed by reference to whether a case enjoys a reasonable prospect of success, still less a likelihood of success. Any such language obscures the nature of the test and may on occasion lead to misunderstanding, appeal and consequent delay.”

44. Referring to the terms of O. 84, r. 24(1) RSC whereby a court may direct that an application for leave to seek judicial review be heard on notice to the respondent, O’Donnell CJ. added:

“This permits a respondent to put evidence before the Court and to advance argument. However, it must also be taken as established that this procedure does not alter the threshold test, and which remains that set out in G. v. DPP. (See the observations of Denham J. in D.C. v. DPP [2005] IESC 77, [2005] 4 I.R. 281).

The question remains, therefore, whether an arguable case has been established.

But moreover, and importantly, that decision must now be made in the light of the evidence submitted by a respondent, and the arguments adduced.”

45. It is clear from the foregoing that the aim of the leave application is to effect a screening process in respect of litigation against public authorities and officers so as to prevent an abuse of the process or trivial or un-stateable cases proceeding, thus impeding public authorities unnecessarily. A point of law is only arguable if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success (see also O.O.

v Minister for Justice [2015] IESC 26) and this is the threshold which an applicant for leave must meet. The test is not changed by participation in the process of the Respondent but the application of the test is informed by the evidence submitted by a respondent and the arguments adduced.

DISCUSSION AND DECISION

46. Even though many of the exhibits relied upon by the Applicant appear on multiple occasions, when the leave application finally came on for hearing before me it remained exceedingly difficult to access the documents by reason of the manner of their presentation before the Court. The presentation of the papers added complexity and confusion to this application. Specifically, issues arose when the Applicant sought to rely on documents which could not be found in exhibits to properly sworn affidavits but which he then sought to “add” to the papers before the Court. This may be an unfortunate incident of the fact that the Applicant was not legally represented but it was unhelpful to the proper conduct of the proceedings and frustrating, time consuming and expensive for the Respondent.

47. The absence of legal representation has added greatly to the time taken to determine this application. Significant court time and resources could have been saved had the Applicant had the benefit of legal advice and representation such that the cost in court resources is likely to have outweighed the cost of legal aid provision. Indeed, some of the issues sought to be pursued by the Applicant flow from a clear misunderstanding of the parameters of proceedings taken by way of judicial review. Points which I am required to address on this judgment might not have been pursued at all had the Applicant the benefit of competent legal representation, presuming he was willing to accept legal advice.

48. I will endeavour to address the legal grounds identified on this application to the extent that they are in any way intelligible and otherwise properly maintainable within the parameters of a challenge by way of judicial review to the Circuit Court Order made on the 24th of May, 2024.

Time Issue

49. It is appropriate to first consider the time issue which arises in circumstances where papers were only filed for the purpose of making a judicial review application on the 16th of September, 2023, in respect of the Circuit Court order made on the 24th of May, 2023, already almost four months after the orders which it is sought to impugn were made. The application was not opened before the High Court until the 16th of October, 2024, well outside the three-month time limit specified under the then operable (since amended by S.I. 163/2024) provisions of O. 84, r 21 RSC.

50. As the application for leave was not opened before the High Court within three months of the making in May, 2023 of the Circuit Court Order sought to be impugned, these proceedings are out of time (Heaney v. An Bord Pleanala [2022] IECA 123).

Accordingly, an extension of time is required if the Applicant is to be permitted to obtain substantive relief in these proceedings. The Applicant has not sought an extension of time in his pleadings.

51. To establish an entitlement to an extension of time, the Applicant is required to demonstrate both good and sufficient reason for doing so (O.84 r. 21(3)(a)) RSC and that the circumstances that resulted in the failure to make the application for leave within three months were either outside the control of or could not reasonably have been anticipated by the Applicant (O. 84 r. 21(3)(b)(i) & (ii)) RSC. Order 84 rule 21(5)

RSC expressly requires that an application for an extension of time shall be grounded upon an affidavit sworn by or on behalf of an applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the prescribed period and shall verify any facts relied on in support of those reasons.

52. Even though the Respondent’s objections on time grounds have been well-signalled in an Affidavit filed in March, 2025, several months before the assigned hearing date, the Applicant has neither sought an extension of time in the papers filed before me nor has he sought to advance in the proper way an evidential basis for the grant of such an extension.

53. While it is usually a matter for the judge at full hearing of the proceedings to decide whether to grant an extension of time or not, leave should only be granted where an arguable basis for the grant of an extension of time is demonstrated on the papers before the Court. In his oral submissions, the Applicant referred to some endeavours to obtain legal representation to explain or excuse his delay in commencing proceedings. He specifically referred to an attempt to secure representation from FLAC, albeit it appears from a record contained amongst the exhibits that he may not have contacted them until late August, 2023 and was immediately advised that they were not in a position to provide representation. In response, counsel for the Respondent pointed out that the Applicant has obtained legal aid in other, unrelated proceedings. The Respondent’s position is that the Applicant should not be afforded latitude in these proceedings to permit circumvention of the Rules merely because he is a litigant in person.

54. Nothing urged by the Applicant on me suggested that were I to afford him a further opportunity (against a background of multiple adjournments and affidavits) that he could produce an adequate evidential basis upon which to contend that he had both good and sufficient reason for seeking an extension of time and that the circumstances that resulted in the failure to make the application for leave within three months were either outside the control of or could not reasonably have been anticipated by him. I do not consider that a further postponement of a decision on this application would be justified given that these proceedings relate to events occurring in 2021, particularly where the Applicant has had multiple opportunities to put forward his case on affidavit, including since the time issue was expressly brought to his attention. The Applicant has not persuaded me that there is anything that he could say on affidavit, if given yet another opportunity, that might arguably induce a court to extend time in this case in view of the governing test.

55. I cannot grant leave in this case on the basis that arguable grounds for seeking an extension of time have been substantiated, thereby leaving over the question of whether an extension of time should be granted or not as a matter for the judge at full hearing, as not only has an extension of time not been sought but neither has an evidential basis of any kind been advanced to ground the making of an order extending time. This is a clear breach of the requirements of O. 84, r. 21(5) RSC and does not comply with established principles in cases such as MO’S v. Residential Institutions Redress Board [2018] IESC 61 or Arthropharm (Europe) Limited v. the Health Products Regulatory Authority [2022] IECA 109. Having regard to decisions such as that of Noonan J. in Duffy v. Road Safety Authority [2015] IEHC 579, I would not give leave to proceed to seek an extension of time, an important pre-requisite to the grant of leave in respect of the substantive matters arising, where an application for an extension of time has not been properly presented in accordance with the Rules of the Superior Courts. It is not in the interests of justice, particularly having regard to rights of expedition enjoyed by the Respondent, the proper use of court resources and the nature of the issues in this case, that a further adjournment be afforded the Applicant to see if he could rectify the pleading deficit regarding a necessary extension of time.

56. For completeness, given that these are proceedings maintained by a litigant in person and lest my decision on time grounds be considered an incorrect conclusion, I propose to next further consider whether the Applicant has identified arguable grounds for challenging the Circuit Court orders he seeks to impugn in these proceedings.

Substantive Issues

57. A wide range of issues are raised by the Applicant. By way of general observation, I note that the Applicant appeared to me to labour under a misapprehension as to the role and function of the High Court in judicial review proceedings, requesting that the

decision-making process from the lower courts in his case be “viewed again”. The Applicant raises various issues in his affidavits with how the prosecution proceeded before the District Court, even though the only decision potentially amenable to review in these proceedings is that of the Circuit Court. Furthermore, he appears not to appreciate that the High Court in judicial review proceedings does not sit in appeal in respect of decisions of the Circuit Court on appeal from the District Court and proceedings by way of judicial review do not provide a platform for a merit based, de novo consideration of the evidence.

58. On this application the Applicant seeks leave to quash the decision of the Circuit Court.

I have struggled to understand the Applicant’s purpose in seeking to quash that part of the decision which allows his appeal against conviction in respect of alleged noncompliance with the Closure Order. An application to quash an order made in the Applicant’s favour setting aside a District Court conviction is not a sensible one and I do not understand why the Applicant is pursuing it. Although the Applicant had been prosecuted and convicted for breach of the Closure Notice in the District Court, that conviction was set aside in the Circuit Court.

59. The previous conviction recorded by the District Court has no legal force or effect and the decision of the District Court has been superseded by that of the Circuit Court. It is manifestly futile and nonsensical for the Applicant to continue to complain in these judicial review proceedings about a conviction order made in the District Court which has been set aside on appeal. He has not identified any interest or any sufficient interest he might have in setting aside an order which operates to his benefit. It is not understood what benefit for the Applicant could arise from an order quashing the order of the Circuit Court dismissing the alleged breach of the Closure Notice.

60. The Applicant has already obtained a remedy in respect of his issues regarding the allegation that he had not complied with the Closure Notice. This complaint does not warrant further consideration and falls short of the low threshold for leave.

61. The primary concern articulated by the Applicant, at least insofar as I understood the thrust of his argument, during the hearing before me related to the making of the Closure Notice in respect of his establishment pursuant to s. 21 of the 2010 Act at all. Rightly or wrongly, he appeared to harbour a heightened sense of wrongdoing in relation to this Closure Notice served on him by the Respondent in October, 2021. It must be recalled, however, that the making of the Closure Notice was not before the District or Circuit Courts at any material time as the Applicant never exercised his right of appeal in respect of the serving of the Closure Notice pursuant to s. 21(4) of the 2010 Act. In circumstances where it was not before the Circuit Court, it is manifestly the case that the High Court cannot now be properly invited to review its lawfulness.

62. In his submissions before me, the Applicant focused considerable attention on the lawfulness of the Closure Notice (whether it had been authorised, whether it was justified having regard to animal welfare etc) even though no relief is sought in these proceedings in respect of the said Closure Notice.

63. In circumstances where no relief is sought in respect of the said Closure Notice in the application for leave to proceed by way of judicial review before me and where the remedy of an appeal pursuant to s. 21(4) of the 2010 Act was available but not pursued and where the Circuit Court has not found the Applicant in breach of the Closure Notice, I am satisfied that there is no requirement for me to consider the Applicant’s various complaints with regard to the Closure Notice (whether as to its signature, the authority of the signatory, the requirement for signature by a vet, the dates inspection occurred etc. and the requirement or otherwise for an inspection on the 1st of October, 2021 contemporaneous with the making of the Closure Notice) any further.

64. A statutory remedy existed in respect of the said Closure Notice following its service in October, 2021. This remedy was not pursued. Any attempt to belatedly ventilate a concern as to the lawfulness of that order in proceedings commenced almost two years later and without having availed of an effective, alternative remedy is plainly misconceived and bound to fail.

65. Whether contravention action by the Respondent in reliance on an unrevoked closure notice might trigger fresh grounds of challenge is not an issue I need to consider at this time. I have no role in determining hypothetical issues which are not properly grounded on the papers before me and the Applicant has not substantiated an entitlement to leave on an arguable grounds basis with regard to his complaints relating to the Closure Notice.

66. Similarly, the Applicant’s concern as to reputational damage and the perceived wrongs of the Respondent in its dealings with the Applicant under the 2010 Act are not matters captured within the parameters of a challenge to the Order made by the Circuit Court in May, 2023 and do not properly arise in these proceedings. Thus, the Applicant’s complaints in relation to “false toxic defamatory reports made against P.J. Rigney by County Vet, Dog Warden and C Dowling and nothing signed” and other similar complaints including complaints in relation to the photographs used which he considered to have been selected to paint his kennels in a bad light, are not justiciable by way of judicial review and do not relate to the decision making process of the Circuit Court which determines the parameters of these proposed judicial review proceedings.

67. Likewise, concerns agitated in relation to the form of a summons which was served on the Applicant, but which was not progressed, never came before the District Court for hearing (still less the Circuit Court) and is not being relied upon, cannot properly form the basis of a sustainable challenge to orders made in these proceedings grounded upon a different summons.

68. The same cannot be said of the summons to appear before the District Court on the 2nd of March, 2022, which resulted in the conviction order ultimately made by both the District and Circuit Court on appeal. I understand the Applicant’s complaint to be that the summons was defective because the name of the issuing clerk is not printed in legible form on the face of the summons contrary to the requirements of s. 1(6)(e) of the Courts Act, 1986 (as amended) which requires that the name of an appropriate District Court Clerk shall be specified on each summons. It is the case that while the summons is endorsed with initials, the name of the signing District Court Clerk is not discernible, although the clerk is identified as being a clerk of the District Court Office at Tullamore, County Offaly and the summons is issued out of that Court Office. The Circuit Court Judge did not consider this argument had any substance with reference to jurisprudence which confirms that once an accused person appears in court, that cures any defects with the summons and noting that the summons says clearly on the page the complaint was made to the District Court clerk in Tullamore which the Circuit Court Judge considered made the position quite clear. It is clear from the transcript that the Circuit Court Judge understood and engaged with the Applicant’s argument and rejected his complaints as to the alleged defect in the summons on a reasoned basis in line with his understanding of the law.

69. In response to the Applicant’s complaint on this leave application, the Respondent submits that the summons benefits from a presumption that it was duly applied for and issued. It is pointed out that even if it could be said that there is a defect in the summons, it is a defect in form rather than in substance and the Applicant cannot now be heard to complain about same in circumstances where he appeared and contested the proceedings in full before both the District and Circuit Courts.

70. The Applicant’s arguments regarding the form of the summons was not one completely devoid of any substance having regard to the mandatory language of s. 1(6)(e) of the 1986 Act. It seems to me there was indeed an argument open that the summons was defective. On the other hand, as the Circuit Court Judge pointed out, the summons clearly states the offences alleged, identifies the issuing District Court Office and the date, time and place of court appearance. No risk of injustice flowed from the difficulty in identifying the District Court Clerk who signed the summons where the summons clearly served its purpose in notifying the Applicant of the charges against him and affording him an opportunity to attend to answer the charges and to be heard in his own defence on a listing of the charges before the District Court in accordance with the particulars notified. The Circuit Court Judge properly engaged with this question of law and concluded that insofar as there was a defect it was not one which goes to jurisdiction. Satisfied that the error did not go to jurisdiction and no prejudice flowed to the Applicant, he did not embark on an inquiry as to whether the defects complained of were such as to go to the jurisdiction of the court and, if they might be, to hear evidence to ascertain whether the court had jurisdiction.

71. The question is whether it is arguable, on a low threshold, that this was a conclusion he was entitled to arrive at and whether his approach to the nature of the defect was correct.

In this regard, I note reliance placed on the decision of Clarke J. in Payne v. Brophy &

Ors. [2006] 1 I.R. 560. There are important distinguishing features between this case and Payne such that a strong case exists that the Circuit Court Judge was correct in his

conclusion that the defects were merely technical and the ultimate prospects of success of the argument being pursued may be weak (presuming he was entitled to an extension of time).

72. Nonetheless, notwithstanding clear points of difference, it seems to me that it cannot be definitively concluded on foot of a preliminary analysis at leave stage, in view of the

decision in Payne, that the Circuit Court Judge did not act in excess of jurisdiction when he proceeded with the hearing in circumstances where the responsible District Court Clerk’s name was not discernible. In Payne, Clarke J. considered there to be a fundamental distinction to be drawn between defects which go to jurisdiction and those which are purely procedural in nature, observing that a defect which goes to the jurisdiction of the court cannot be cured by the attendance of the defendant, stating that similar consequences would seem to flow from a situation where the summons itself is fundamentally flawed.

73. It seems to be that it is arguable, at least on a low threshold, that a summons which does not comply with s. 1(6)(e) of the 1986 Act (as amended) by naming the District Court Clerk is fundamentally flawed notwithstanding the presumption under s.1(9), the Applicant’s attendance before the Court to raise the jurisdictional issue and to respond to the complaint and notwithstanding the fact that the summons is otherwise demonstrably compliant with the requirements of s.1 of the 1986 Act. Were I satisfied to grant the Applicant leave to seek an extension of time in this case, it seems to me that I would also be required to grant leave to argue that it was not open to the Circuit Court Judge to excuse non-compliance with s. 1(6)(e) of the 1986 Act in the way he did, irrespective of the strength of the reservations I might harbour on the ultimate success of the argument.

74. Insofar as the Applicant contends that there was some breach of fair procedures by reason of the fact that he was “never brought to the stand in his defence”, it is apparent from the transcript that the Applicant addressed the court at length on his own behalf.

While he did not give sworn evidence and the oath was not administered, he was heard before the court in the form of his submissions to the Court and his cross-examination of the prosecution witnesses such that the Court could have been left in no doubt as to the case which the Applicant was making. It is apparent from the transcript that the Applicant was given considerable latitude in tendering what amounted to unsworn evidence before the Court and no unfairness resulted from the fact that he did not give his evidence under oath in the witness box. No arguable grounds are demonstrated for seeking to challenge the conviction order recorded against him on this basis.

75. As for the Applicant’s complaint that a solicitor consulted by him appeared for the local authority giving rise to a conflict of interest, this complaint is confused and has not been substantiated in any intelligible manner. The solicitor identified by the Applicant was never on record in the proceedings. Hoey & Denning LLP have had carriage of the proceedings from the outset on behalf of the Respondent at all material times. The height of what appears to be alleged is that a solicitor who had a prior involvement with the Applicant in respect of issues before the Court stood in for the Respondent on a consent adjournment application in a call-over list, although even this much is not clear.

76. Other remedies lie where a complaint of conflict of interest is made as against a solicitor. It is not a matter which properly arises for adjudication in these proceedings by way of judicial review unless some unfairness in the decision-making process before the Circuit Court is demonstrated. Even were the Applicant’s complaint in this regard substantiated in evidence, no stateable basis for any resulting unfairness grounding the relief pursued in these proceedings has been established.

77. The presence of transcription errors in the DAR transcript of the Circuit Court hearing on the 24th of May, 2023, does not establish that the record has been “altered” or that “part of the case has been omitted from the transcript”. The Applicant’s complaint in this regard is not substantiated. No proper basis for the grant of leave to proceed by way of judicial review with regard to issues with the transcript has been established.

CONCLUSION

78. For the reasons set out above, I have decided to refuse this application for leave to proceed by way of judicial review. Except for one ground of complaint identified, the Applicant has failed to establish arguable grounds for maintaining this challenge.

Notwithstanding the identification of a basis for complaint on a low threshold regarding a possible jurisdictional issue referrable to non-compliance with s. 1(6)(e) of the 1986 Act, these proceedings are out of time. No properly constituted application for an extension of time is before me. In view of the nature of the issues identified by the Applicant and the history of the case, I am not satisfied that any proper or adequate basis exists for adjourning these proceedings to afford yet one further opportunity to the Applicant to mend his hand.