Neutral Citation Number: [2019] IECA 17
Record No. 2014 821
Birmingham P. Edwards J. Kennedy J.
EDDIE KERSHAW
APPELLANT
V
JUDGE GERALD GRIFFIN
JUDGE MARGARET HENEGHAN
RESPONDENTS
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY
JUDGMENT of the Court delivered 22nd January 2019 by Mr Justice Edwards.
Introduction
1. This is an appeal against the judgment and Order of the High Court (Peart J) dated the 26th of April 2013, refusing an ex-parte application by the appellant for an extension of time within which to seek leave to apply for judicial review for certiorari and other relief to quash certain decisions of the Circuit Court, principally decisions of Her Honour Judge Heneghan made on the 23rd of November 2011, whereby she convicted the appellant of various road traffic charges alleging driving without insurance at the hearing of certain District Court Appeals, brought by the appellant, that were then before her. The appellant was significantly out of time in seeking leave to apply for judicial review, and the High Court judge refused relief in circumstances where he had adjudged that the appellant had failed to put forward good and sufficient reason as to why the period provided by the Rules of the Superior Courts should be extended.
2. The appeals in question although disposed of on the 23rd of November 2011 had in fact been listed for the previous day but were initially struck out for non-appearance by the appellant on that date, in circumstances where the appellant had not appeared because he was before another court at the same time. Those appeals were in fact re-instated later on the same day but were then adjourned peremptorily to the following day. On the 23rd of November 2011 the appellant appeared and notwithstanding the peremptory listing proceeded to seek an adjournment to enable counsel to be instructed. The adjournment application was refused. The appeals then proceeded and the appeals were unsuccessful. The appellant was again convicted of all matters and certain penalties were imposed and consequential orders made, including most significantly from the appellant's perspective, disqualification from driving for a period of five years. The appellant's main complaint, although by no means his only complaint, against Judge Heneghan, is that she insisted that the cases go on in circumstances where he was unrepresented. He also alleges various other legal and procedural deficiencies in the manner in which she conducted the District Court Appeals hearing.
3. Judge Griffin is a party to the proceedings because it seems that he had earlier, on the 9th of March 2010, dismissed a District Court Appeal brought by the appellant in respect of his conviction in the District Court for not having a valid NCT certificate. The appellant alleged in his Statement of Grounds that Judge Griffin's order was bad for an alleged "error on the face of the record" and that it was used to "underpin District Court Orders of Judge Clyn 22.2.2011 and the Order of Judge Dempsey, 29.3.2011" . These were the District Court convictions which were the subject matter of the District Court Appeals before Judge Heneghan.
The High Court's judgment
4. The High Court judge delivered his judgment ex-tempore . When it later became apparent that the appellant was desirous of appealing against his judgment and Order, the High Court drew up and signed a note of his reasons for refusing the application for the assistance of the appellate court. The note states:
"Re: Edward Kershaw:
Application for leave to seek judicial review. In haste I record my reasons for refusing leave herein, given that he has informed me that he is appealing my refusal to the Supreme Courts on Monday next. The applicant seeks to have quashed certain orders of the Respondent Circuit Court Judges which were made in 2011. Having read the reasons for seeking an extension of time which are set out at paragraphs 109 and following, I was not satisfied that those reasons are sufficient to justify this Court in extending time after over two years from the date of the orders in question, irrespective of whether there may have been arguable grounds for the reliefs, if they had been sought within the permitted time.
Michael Peart 26.04.2013"
5. The appellant had presented a lengthy affidavit to ground his ex-parte application for an extension of time within which to seek leave to apply for judicial review. It ran to 38 A4 pages of single space typescript, and comprised 115 paragraphs in total. In the first 108 paragraphs the appellant described the procedural history of the proceedings, and set forth the background to the matter in great detail including what had happened before the District Court and the Circuit Court in various proceedings that he contends are relevant. Moreover, particularly at paragraphs 76 to 78 he described attempts by him to instruct a firm of solicitors and counsel to bring judicial review proceedings, and he complains in essence that he was initially told he had a good case, but that his advisors later retreated from that position and were dilatory in progressing the matter on his behalf. He explains how the delay arose on three bases, as appears from paragraphs 79 to 81. In summary his complaints are (i) that various actors on behalf of the State, principally Gardai and court staff, have engaged in a concerted campaign to frustrate his attempts to vindicate his good name and in doing so have oppressed him - he characterises this as "organised gang stalking", (ii) He has been frustrated in prosecuting his intended judicial review by the change of heart on the part of his legal advisors, and (iii) that he has been "inundated" with having to deal with other summonses and that his time was in effect "hijacked", as he characterises it. Then, having set out all of this, he asserts at para 109 that: "… the accumulative effect of the supra mentioned unlawful oppression by the Notice Party and/or their agents cannot be underestimated in terms of the impact on my time and resources that could have been, but for the interference by the Notice Party and/or their agents, invoked to bring the within judicial review proceedings in time. In the circumstances the Honourable Court should extend my time in which to seek the reliefs herein by way of judicial review."
6. The remainder of the affidavit contains some new matters of fact, comprising yet further alleged instances of a campaign by the Gardaí and others to oppress him, and some matters that might properly be regarded as legal submissions on the issue of delay.
Decision
7. Although, the High Court judge, in the penning of his brief note, referred only to "the reasons for seeking an extension of time which are set out at paragraphs 109 and following" , we are absolutely satisfied that he would have been fully aware of the full contents of the appellant's affidavit, and of the full nature of the reasons being put forward by the appellant for not having moved within the period prescribed by the rules. His misstatement of the length of the delay is of no significance. Even taking the correct figure the delay was significant.
8. Order 84, Rule 21 is the applicable rule. The version of that rule that was current on the date of the appellant's ex-parte application to the High Court was in the terms that:
21. (1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.
(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.
(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—
(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.
(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant's failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.
(6) Nothing in sub-rules (1), (3) or (4) shall prevent the Court dismissing the application for judicial review on the ground that the applicant's delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is likely to cause prejudice to a respondent or third party.
(7) The preceding sub-rules are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
9. We have considered carefully all of the reasons advanced by this appellant for not bringing his judicial review in time. Having done so we are satisfied that none of them reach the threshold of cogency and seriousness required to constitute the good and sufficient reasons required by the Rules of Court. We find no error on the part of the High Court Judge.
10. We therefore dismiss this appeal.
