Judge Donal O’Donnell continues to violate a citizen’s constitutional right to fair procedure by refusing to release a copy of the Digital Auditory Recording of his voice that shows he falsified two judgments published in his name. A second Supreme Court Registrar, John Mahon, is now adding his tainted professional bona fide to O’Donnell’s violation the Criminal Justice Act, 1951, First Schedule, Section 2. Ref. No. 2: An indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law.
Violation of both a citizen’s constitutional right and the Criminal Justice Act, 1951 is an unparalleled national disgrace. O’Donnell adds to his arrogant defiance in refusing calls for his resignation with forfeiture of all otherwise lawful retirement rights
Supreme Court Judge Donal O’Donnell presided over hearing Supreme Court Record No. 219 of 2005 on the 12 day of November 2015. There is a Digital Auditory Recording (DAR) of Judge O’Donnell’s voice during the full proceeding. On 21 November 2022, John Mahon, Supreme Court Registrar in his 21 November 2022 correspondence to Dr. Stephens confirmed that Judge O’Donnell would not comply with the Notice of Application underArticle 64.3.3 or Article 64.4.1 Supreme Court No. 219 of 2005, Dr. Gerald J.P. Stephens and James Orange by authorizing release of a printed copy of the DAR.
The Supreme Court Notice of Application.No.4 at section No.5 requires the applicant to state the grounds for making the request for release of the DAR printed copy and is now reproduced below:
ADDENDUM Form No. 4 Section 5
Re: Notice of Application Under Article 64.3.3 or Article 64.4.1
Supreme Court No. 219 of 2005 DR. GERALD J.P. STEPHENS
AND JAMES ORANGE
The ex tempore judgment shows a false statement issued by the presiding Judge,
Mr. Justice O’Donnell and the Registrar in the matter of the voluntary agreement by
Gerald Stephens appearing in the DAR transcript.
Contemporary records of Dr. Gerald J.P. Stephens show Judge Dona O’Donnell’s
extra judicia question to the plaintiff: “If the court decides in your favour, what are
your pans?” The DAR transcript shows Judge O’Donnell repeating the question with
the additional statement that the court that he will not pursue any further action in
the matter.
The record shows that Mr. Justice McKeehnie concurred the judgment. It further
shows that he previously presided in the matter THE HIGH COURT 1999 387 DR.
GERALD STEPHENS AND JUDGE MICHAEL CONNELL AND THE
DIRECTOR OF PUBLIC PROSECUTIONS. The 21st December 2001
Judgment reveals full knowledge of Appellant Orange at paragraphs 9, 10, 11, 27.
Thus, there was not justification or legal grounds for the coercion shows to exist in
the DAR transcript. Further refusal to release the requested document will further
irreparably damage the nation’s highest court.
17 October 2022
The full account is published on: irishcourtswatch.org
Background: James Orange, a solicitor was brought up on complaint before the Solicitors Disciplinary Tribunal. The grounds included professional negligence as found to exist and recorded in the 21st day of December 2001 Judgment of Mr. Justice William M. McKechnie, The High Court No.1999 387 Judicial Review. The Tribunal was ordered by the President of the High Court on the 25th day of April 2005 to furnish to the High Court a report in accordance with Section 7(3)) of the Solicitors (Amendment) Act 1960.
James Orange immediately filed a Supreme Court Appeal against the High Court Order mandating that the Tribunal adhere to the statutory law to make the required report. The Orange Appeal is dated 10th day of June 2005. The historical import, and arguably the longest delay in the history of the Supreme Court, is that the appeal was not opened before the Supreme Court until the 12 day of November 2015 before a three-member panel presided over by Judge Donal O’Donnell.
Judge O’Donnell also presided over a three-member panel in the Supreme Court Appeal of Ledwidge Solicitors v Gerald J. P. Stephens High Court 2007 No. 666. The full details are reported in the published June 18 2019irishcourtswatch.org article, Supreme Court Aborts Hearing Allegations of Pre-Trial Bias and Misprision – Court Conducts Hearing and Orderin Absentia.
Judge Donal O’Donnell participated in support of Chief Justice Clarke’s demand for the resignation of the then newly appointed Supreme Court Justice, Seamus Woulfe.. The details are published in the irishcourtswatch.org, April 18, 2021,Imperial Chief Justice Clarke Stripped Naked. Judge O’Donnell’s enthusiasm for resignation does not seem to extend his personal documented extra judicial conduct.
The lack of evidence sufficient to cause Frank Clarke to explode into a tirade against a newly confirmed Supreme Court Justice was the historic kiss of death for the bloviator. Clarke has a record of comparable injudicious outbursts.
In an unprecedented and remarkably shabby attack on a Supreme Court colleague, Clarke exhibited a state delusional grandeur witnessed among third world dictators. His state of mind was such that his mere edict that Judge Woulfe resign was so ‘supreme’ that no defence would prevail. Shocked by Mr. Justice Woulfe’s response, Clarke turned to his accustomed bloviation, i.e., page upon written page of proffered dicta, in this case to Mr. Woulfe. When the tactic failed to induce the intended bully-boy affect and desperate for cover he grovelled before former Supreme Court Justice Denham for protection.
Denham did not deliver but instead authored a voluminous report on October 1, 2020 designed to demonstrate her serious responsibility to the Supreme Court and the Nation. She concluded by lamenting that nothing more could be done in the matter of Clarke v Woulfe since the judicial conduct provisions of the Judicial Council Act of 2019 have yet to be commenced.
(N.B. The European anti-corruption body, Group States Against Corruption (GRECO), has found Ireland to be “globally unsatisfactory”, particularly in areas of judicial appointment and independence. In response to GRECO findings and what The Honourable Mrs. Justice Denham, CJ stated was of “real concern” and a “significant institutional vacuum”, the legislature passed the Judicial Council Bill (Act 33 of 2019) establishing the mechanism for dealing with complaints against sitting judges.
For those unfamiliar with the Act, it was designed to provide a statutory means of dealing with judicial misconduct. It was written in response to EU criticism of Ireland’s total lack of a legal process to hear judicial misconduct cases. Passage languished in the legislature for more than two (2) years. The Act is severely criticised by legal scholars as a means to correct nothing and introduced to deflect EU criticism
Clarke’s transparent megalomania has not subsided. Recent updates reveal that Mr. Justice Seamus Woulfe still has not been assigned to hear a case before the court. Clarke’s correspondence issued to Woulfe between the 5th and 9th of November 2020 sated that the unanimous view of Woulfe’s Supreme Court colleagues was that he had caused “significant and irreparable” damage to the court and the relationship with it.
The real question to be answered: Who is rending ‘significant and irreparable’ damage to the Nation’s Highest Court? Mr. Justice Woulfe or members of the ‘unanimous’ who trample the constitutional right of Fair Procedue at will?
The Supreme Court has again demonstrated that the standard is
“Any means to an end”
The Supreme Court on 25June 2019 convened to hear an appeal in
SC No. 312/2014, Gerald J. P. Stephens v Kevin M. Bourke. The
High Court case is an action alleging professional negligence. The hearing was
specifically on an Appeal from the 19 May 2014 High Court Order given by Ms.
Justice Baker reference Superior Courts Order 27, rule 9(1).
The plaintiff’s oral submission follows:
The issues before the
court are straight forward.
· Did the plaintiff breach Order 27 rule 9(1)?
· Did the defendant, a solicitor, through his legal representative
fail, refuse or neglect to file a defence within a period of time days short of
a full year following registered Post Service of the plaintiff’s statement of
claim?
· Did the defendant fail, refuse or neglect to file a defence in
the 21 Day extension of time given pursuant to Order 27 rule 9(1)?
· The History:
· The defendant, a solicitor was at all times represented by an
experienced solicitor law firm and counsel.
· On 27 November 2012 – Statement of Claim served on the defendant
by registered post.
· On 4 November 2013 – 21 Day Notice served on the defendant by
registered post.
· On 5 December 2013 plaintiff filed a Notice of Motion for
Judgment in default of Defence.
· On 19 May 2014 the High Court 2009 No. 5326
P, Gerald J. P. Stephens and Kevin M Bourke by Order of the Court,
Baker J.
“That the plaintiff did breach Order 27 Rule
9. No notice of motion for judgment in default in actions claiming
unliquidated damages in tort or contract may be served a formal warning
letter where he threatened defendant giving him notice of his intention to
serve a notice of motion for judgement to the late delivery of defence and at
the same time consenting to the late delivery of defence within 21 days of the
letter.
That the Plaintiff’s motion is hereby
dismissed.”
· In an Approved Judgment dated 10/2/ 2015 Ms Justice Baker issued
a NOTE of EX TEMPORE JUDGMENT on the 19th day of May,
20141
“2. The plaintiff did not himself comply with the Rules the Superior Courts in the warning letter that he served, on the 4th November, 2013, he served a formal warning letter where he threatened a motion but he did not, in the body of the letter or in any way in any other part of the letter or in an attachment to letter, give an extension of time on consent for service of the defence…”
· On 5 November 2013 a 21 Day Notice was served on the defendant
by registered post cc to Groake & Partners: Exhibit GS2 page 11, the High
Court Record No. 2009 5326P (Stephens v Bourke)
The text of the letter reads: “Dear Sir:
Be advised that unless you file a Defence in the above matter within 21 days of
the above date, a Notice of Motion for Judgment in Default will be issued
without further notice.”
· The letter is in compliance with Order 27, Rule 9(1)
(a) It gives the defendant consent of 21 days to file a defence.
(b) It notices that if the defence is not filed within the 21 days
the plaintiff intends to file a Notice of Motion for Judgment in Default of
Defence without further notice.
Redundancies – In English usage, redundancy is usually defined as the use of two or more words that say the same thing, but we also use the term to refer to any expression in which a modifier’s meaning is contained in the word it modifies. Grammarist
· The 21st Day extension made available to the
defendant and consented to by the plaintiff for late delivery of a defence,
expired on 24 November 2013.
· The defendant’s solicitor wrote in the second paragraph of a 9
December 2013 letter to the plaintiff following the expiration of the 21 days
extension: “In fact, our letter to you dated the 26th November
2013 with enclosed Defence was sent to by registered post but that was returned
to us marked “not collected for” we then sent that letter to you by ordinary
post.”
· The record unequivocally shows that the defendant’s qualified
solicitor failed, refused or through negligence disregarded the obligation to
even abide by the 21day late extension that expired on 24 November 2013.
· The defendant at no time stated the existence of special
circumstances which explain or justify the failure to produce a defence within
the period of one year following service of the plaintiff Statement of Claim
and the extended period of 21 days.
AUTHORITIES
In Molloy
v. Reid – S.C.No. 56 of 2013
– IESC Clarke J at Introduction [3] wrote: Time, it is said, waits for no
man. Time can be important in many aspects of the law. In private
law, parties frequently agree that their obligations are to be met within a
certain time frame. Sometimes, because those parties agree that time is
essential to their agreement, even a minor failure to comply in time will be
considered a breach which my lead to significant consequences.
SPECIAL CIRCUMSTANCES
Delaney and McGrath on Civil Procedure, 4th edition
(2018) on page 274 at (b) 5-170 Order 27, rule 9 (1) – Order
27, rule 8(1) requires the first step for the plaintiff to write to the
defendant giving him notice of his intention to serve a notice of motion for
judgment and consenting to the late delivery of the defence within 21 days of
the date of the letter.
· On page 278 5-182 The decision of the majority was delivered by
Murray J who examined the term of the revised Order 27, rule 4. He noted
that it had been amended by the insertion of the phrase: “if the Court is
satisfied that at the time of the default special circumstances…existed which
explain and justify the failure. He characterised this
amendment as “specific and narrowly focused” which “introduced a new and
stricter, criterion which an applicant must satisfy before he or she can rely
on the Court exercising its discretion in his or her favour.
· He regarded it as striking that the amended rule did not
introduce any time limit within which an application to set aside a default
judgment must be brought and that what an applicant was required to demonstrate
was that there were “special circumstances” explaining and justifying the
failure at the time when the judgment was obtained. He, therefore,
rejected the contention that delay of an inordinate nature in bringing the
application to set aside the default judgment could affect the question of
whether there were “special circumstances” at that time that the default
judgment was obtained.
· Murray J went on to refer to the judgment of Hardiman J in Gilroy
v Flynn, which he said: reflects the approach of the Courts in
contemporary circumstances having regard to the need to, as far as practicable,
ensure the timely disposal of cases pending before the Courts and the rights of
parties to a hearing within a reasonable time as envisaged by Article 6
of the ECHR.
· At 5- 184 the concluding paragraph reference the European
Convention of Human Rights states: How such issues arising from such
delay on the part of a party are resolved remains a matter for the Court’s
discretion having regard to the interests of justice in all the circumstances
of the case.
The Supreme Court case law is replete with
rulings dealing with Rules of the Superior Courts. It has spoken to Order 27
Rule 9(1), the procedure required for a party in the matter of Judgment in Default
of a Defence. The authorities presented by Appellant/Plaintiff Stephens
demonstrates the Court’s position, “…even a minor failure to comply in time
will be considered a breach which may lead to significant consequences”: Molloy
v. Reid, S.C. 56 of 2013 -IESC Clark J
Delaney and McGrath on Civil Procedure, 4th edition
(2018) on page 274 at (b) 5-170 states the first required step for the
plaintiff when prosecuting an issue of Order 27, rule 9(1). At hearing of
the appeal, SC No. 312/2014, Gerald J. P. Stephens v Kevin M. Bourke,
the Court panel asked Defendant Counsel if the defendant understood that the
plaintiff’s 21 Day letter gave consent to the defendant to a 21-day extension
of time to file a defence? Counsel responded, “Yes.” As noted, the record shows
that the defendant failed, refused or neglected to file a defence within the
extended period of time. The above continues to report the court may consider
“special circumstances” existed explaining and justifying the failure.
Defendant/Respondent Bourke put forth no special circumstance for its failure
to comply with Rules of the Superior Courts, Order 27.
As noted in the appellant/plaintiff submission
that not only did the defendant fail to comply with the 21-day time extension,
he, a solicitor represented by an able solicitor firm, failed, refused, or
neglected to file a defence in the fullness of an entire year following receipt
of the Statement of Claim.
The Court responding to the above breach
stated to the appellant/plaintiff, “You could have taken action during that
year to further the matter”, dismissing the central issue of the defendant’s
conduct.
The issue on appeal was singular and
specific: Did Judge Baker err in both her original Order of 19 May 2014
and restated in her Note of Ex Tempore Judgment on 2 October 2015 wherein it
was stated that the plaintiff did breach Order 27 Rule 9:
Original 19 May 2014
Order
“That the plaintiff did breach Order 27 Rule
9. No notice of motion for judgment in default in actions claiming
unliquidated damages in tort or contract may be served a formal warning
letter where he threatened defendant giving him notice of his intention to
serve a notice of motion for judgement to the late delivery of defence and at
the same time consenting to the late delivery of defence within 21 days of the
letter.
That the Plaintiff’s motion is hereby
dismissed.”
Note of EX TEMPORARY JUDGMENT on the 19th day of May, 2015
“2. The plaintiff did not himself comply with the Rules the Superior Courts in the warning letter that he served, on the 4th November, 2013, he served a formal warning letter where he threatened a motion but he did not, in the body of the letter or in any way in any other part of the letter or in an attachment to letter, give an extension of time on consent for service of the defence…”
The 21-day letter sent registered post to the defendant reads,
“Dear Sir: Be advised that unless you file a Defence in the above matter
within 21 days of the above date, a Notice of Motion for Judgment in Default
will be issued without further notice.”
The appellant argued that the letter is in compliance with Order
27, 9(1).
(a) It gives the defendant consent of 21 days to file a defence.
(b) It notices that if the defence is not filed within the 21 days
the plaintiff intends to file a Notice for Judgment in Default of Defence
without further notice.
Counsel for the defendant responding to the Court’s question
regarding the issue of consent stated that the letter was taken by the
defendant to mean that consent was given for a 21day extension of time by the
plaintiff to the defendant. The record shows that the defendant failed,
refused or neglected to comply with the 21day extension of time. The
Court stated that the matter of consent was inherent in the Plaintiff’s 21 Day
letter.
At that moment the Court concurred that the requirements
of Order 27, rule 9(1) had been satisfied by the plaintiff in his 21 Day Letter
to the defendant.
As seen in the preceding text the matter before the Court was
specific to the judicial conclusion wrought by Ms. Justice Baker that the
plaintiff breached Order 27, Rule 9(1) he did not consent to a 21-day extension
of time to the defendant for the purpose of filing a defence.
Supreme Court Ruling
Transcript Gerald Stephens v. Kevin Bourke -25 June 2019
Line 23 through 28: The appellant’s chief
complaint against the ruling of Ms. Justice Baker is that she told him that he
had fallen foul of a procedural rule in that he had not expressly stated in his
21-day letter that he was consenting to late delivery of the defence. The
Court considers that the appellant has a reasonable argument to make in that
respect. We are prepared to accept that that is implicit in the 21-day
letter that within that period he was consenting to delivery of the defence
within that period of time.
The Court next
exceeded its jurisdiction by entering into the specific appeal before it a
discussion and analysis of the Tracy case.
The context in Tracy involved absolutely nothing to do with
whether or not the plaintiffs violated Order 27. Rule 9(1) reference issuance
of consent in a 21 Day letter(s) they issued. The issue in Tracy is
unambiguously one of was the appellant Tracy entitled to a judgment in default
of defence?
The issues before the court in Tracy are as different from those
in Stephens v Bourke as those of Switzerland and South Africa. To suggest
otherwise is brazen sophistry.
The matter before the
Court in Tracy was an appeal on the issue of the High Court refusal to grant
judgment in default of defence pursuant to O.27, rules 8 and 9 of the Superior
Court Rules.
The matter before the
Court in Stephens v Bourke was singular, appeal against Ms.
Justice Baker Judgment/order that the plaintiff did breach Order 27 rule 9(1).
Supreme Court Aborts Hearing Allegations of Prejudgment Bias and Misprision – Court conducts hearing, judgment and order in absentia
The predicate for the allegations arose when the current Supreme Court Chief Justice sat at hearing of the High Court in Philip Clarke practicing under the style and title of Ledwidge Solicitors and Gerald J. P. Stephens, High Court 2007 No. 666S.
History
High Court Record No.
1999 387JR in the matter of Gerald Stephens v Judge Michael Connellan
and the Director of Public Prosecutions shows that the charges against Gerald Stephens,
Firearms Act, the illegal importation of firearms and ammunition were set aside
by Mr. Justice McKechnie in a 52page Judgement given on 21 December 2001.
The Court further ordered costs to Stephens.[1]
Following the above,
the solicitor acting for Stephens withdrew from private law practice to take up
a position with the State. He referred Stephens to Philip Clarke, a
solicitor for the purpose of executing collection of the ordered costs.
Solicitor Clarke obtained, with the file, the original fee statements submitted
by all the retained legal representatives. However, he failed, refused or
neglected to take any further action in the matter for the period of c.3 years.
Mr. Clarke’s retainer
was terminated in 2004 for cause in the above and failure to prosecute a libel
case under his retainer which resulted in dismissal of the matter.
Subsequent to the registered post notice of termination, solicitor Clarke
listing himself as solicitor of record acted without authority in 2007 on his
former client’s behalf where he filed Notice of Taxation before the Tax Court
in the Judicial Review Order for costs. At hearing of the matter, the Master
ruled that solicitor Clarke did not represent Gerald Stephens and
permitted the latter to proceed pro se.
The Tax Court issued
an order in the amount of 99,590.67 euro for costs against the State. The order
further directed that the proceeds be paid only in the name of Gerald Stephens.
Solicitor Clarke immediately filed a High Court Summary action against
Stephens, Philip Clarke practicing under the style and title of Ledwidge
Solicitors and Gerald J. P. Stephens, High Court 2007 No. 666S.
The action was
commenced without consultation or determination with Stephens reference
settlement of outstanding legal fees. The matter was listed for hearing
before the High Court Master.
Clarke, through
Counsel Rutherdale, presented to the court that a Certificate of Taxation was
issued by the Tax Court and the ground for the Summary action. Defendant
Stephens stated to the Court that no Certificate of Taxation was issued by the
Tax Court. The Master ordered the matter to proceed before the High
Court. The case was eventually listed to be heard by Mr. Justice Frank Clarke.
The issue of the
non-existence of a Certificate of Taxation issued by the Tax Court was opened
by Stephens. Mr. Justice Clarke on 5 December 2007 adjourned the hearing with
order to Stephens to produce evidence of the allegation that no Certificate was
ever issued by the Tax Court with comment that this was a very serious
allegation that would “change the entire matter”. The evidence was obtained
within five days (5) days and submitted to the court by affidavit.
Stephens’ letter of 6
December 2007 to Paul T. Lynch, The High Court, Registrar, The Taxing Masters
Office and Registrar Lynch’s response of 10 December 2007 are seen below in an
affidavit before the Supreme Court Appeal No.382/2008, High Court No.2007/45SA.
The latter case was predicated on appeal to the President of the High Court of
the Solicitors Disciplinary Tribunal record No 6632/DT49/07 ruling against
Stephens in his complaint to that body in the matter of Philip Clarke,
Solicitor. The President, Mr. Justice Johnson ordered the matter to be
heard in full hearing, not on affidavit.
The hearing was
presided over by High Court Gilligan J who forced the matter to be heard on
‘affidavit’. That decision also appearing in the affidavit referred to above.
Multiple other matters involving this Judge are presented in future posts.
At the conclusion of
the hearing portion of High Court No. 2007/666S Mr. Justice Clarke opened an
opportunity for the litigants to make closing statements before giving
judgement. Defendant Stephens stated that the conduct exhibited by Mr.
Clarke, a solicitor, throughout the entire matter represented scamming the
system and was illegal. Justice Clarke, in a reported and recorded outburst
said, “You are the one scamming the system and you did it in the other case.”
He then proceeded to give Judgment against the Defendant.
Issues at Appeal before the Supreme Court hearing in absentia with dismissal stipulation designed to never allow the matter to be heard and recorded. Pre-judgment Bias against the Defendant.
Plaintiff’s action after his retainer was withdrawn for cause in filing a Claim before the Tax Court on behalf of the former client in the matter of High Court No. 1999 387 JR.
Plaintiff conspiring with other members of the bar to create and file fraudulent statements of legal fees.
Plaintiff’s conduct in filing a fraudulent statement of fees on behalf of the co-conspirators before the Tax Court.
Plaintiff conduct in in filing a false Affidavit in the matter of an alleged Certificate of Taxation.
[1]Editor’s Note: High Court Mr. Justice William M.
McKechnie, High Court No. 1999 387 JR Decision appears at courts.ie.
The record reveals the genesis of matters involving Dr. Gerald J. P.
Stephens following retirement in Ireland.
N.B. Follow up for the
next ICW post will continue to provide further documentation in all matters
opened in previous posts.
The Court of Appeal – Civil published an update regarding assignment of case hearing dates on 26th March 2019: ARTICLE 64 CALLOVER. WEDNESDAY 3RD APRIL 2019.
“1. Following on
previous measures to assist in alleviating the backlog of appeals in the Court
of Appeal, the Supreme Court will again likely give favourable consideration to
application to reverse, in certain specific case, the direction which had
effect of transferring those appeals to the Court of Appeal.”
“2. It is intended that the appeals returned to the Supreme
Court under this arrangement will be listed for hearing on the days between the
19th June 2019 and the28th June 2019 (both dates inclusive). A call-over of appeals which may be the subject
of such return to the Supreme Court and which may potentially be provisionally listed
for hearing during that period will take place on Wednesday the 3rd
April next at 10 o’clock in Court 1, Court of Appeal Building.”
In effect the above reported action in specific cases will order the cases be returned to the Supreme Court. This embarrassing turn of events demonstrates that the scheme of pawning off cases from the Supreme Court to the Court of Appeal is a shocking failure. Responsibility for the turmoil lies directly at the feet of the Chief Justice of the Supreme Court of who is charged with the management of the lower superior courts. It represents further critical delay for cases that in some instances have waited for a hearing for five or more years to date.
N.B. The key verbiage: A call-over of appeals which may be the subject of such return to the Supreme Court and which may potentially be provisionally listed…
On 30th October 2018 Geraldine Manners, Registrar of the Court of Appeals issued notice having regard to the current waiting times in the Court of Appeal current cases scheduled for the 8th November 2018 and 15th November 201 8, “are deferred until further notice”. She further states Practice Direction CA03 even if successful, “However, it should be noted that having to the current waiting times it is unlikely that any such hearing date will be before Michaelmas term 2020”.
The Thirty-third
Amendment to the Constitution of Ireland was voted affirmatively by national
referendum on 4 October 2013. It
established a Court of Appeal to which matters heard by the High Court could be
appealed. The intent of the amendment
was to reduce the work load of the Supreme Court where waiting time for the
hearing of an appeal could exceed five (5) years.
The notice issued by
Court of Appeal Registrar Manners deals with only the first part of the process
before this court, i.e., obtaining a hearing for the purpose of having
allocation of a fixed date for the hearing of the appeal. The notice warns that
this initial hearing to obtain a fixed date for the actual appeal to be heard
is unlikely to be scheduled before 2020. The waiting time for completion of the
above fixed date procedure is again subject to even further delay for a hearing
of the appeal to occur.
The national
pre-referendum assurances given to the law profession and public for correction
of waiting times occasioned by Supreme Court delays of five or more years have
evaporated. The delay for justice at the
Supreme Court level has merely been replaced by the intermediary Court of
Appeal.
The Court of Appeal Act
2014 (“the Act”), which was signed into law on 20
July last, provides for the establishment of a general Court of Appeal which will
sit between the High and Supreme Courts.
Origin: Latin, literally ‘the matter speaks for itself’.
Ireland’s history is only unique from that of other nations wherein the rights of man and freedoms where trampled in that it required the people c. 800 years to lift the yoke of the despots. We now declare and believe t hat democracy has been achieved. This belief is supported by the establishment of a constitution , free elections for the members of the legislature to make law, and courts to adjudicate disputes.
In theory democracy mandates that each of the elements perform in the initial and final acts in adherence to and be consistent with the constitution. The obvious question arises what if the initial and final acts are not executed in accordance with the written text of the constitution? The courts are granted the authority to give relief from all and any transgressions. What if the latter fails?
The material presented in coming posts will require application of ‘the matter speaks for itself’.
Democracy is a mechanism through which free people engage to provide order and protection of the individual’s human and prescribed rights. The lynchpin of success is adherence to the established law. The final arbiter of those rights under the law resides in the courts. The Supreme Court of Ireland has repeatedly declared “fair procedure” a sacrosanct constitutional right. It has also declared that even a final decision rendered by that body must be subject to examination if it is demonstrated that a decision of that court fails the citizen’s constitutional right of “fair procedure”.
The Supreme Court has unequivocally stated that the burden of proof against a court’s decision is the responsibility of one challenging the decision(s). To that requirement court documents are the most reliable means of identifying the nature and substance of a challenge. While a single case may demonstrate non-adherence with the sacrosanct requirement of fair procedure the argument is enhanced through presentation of multiple cases. This permits the establishment of a fact pattern.
In the matter of The Honourable Mr. Justice Frank Clarke, CJ., Supreme Court.
In the matter of The Honourable Mr. Justice Donal O’Donal, Supreme Court.
In the matter of The Honourable Mr. Justice Liam McKechmnie, Supreme Court.
In the matter of The Honourable Mr. Justice Sean Ryan, The Court of Appeal, Court of Appeal President, ex officio Supreme Court.
In the matter of The Honourable Mr. Justice Gerard Hogan, The Court of Appeal.
In the matter of Mr. Justice Paul Gilligan, High Court, Chancery, retired 2018.
In the matter of Mr. Justice Donald Binchy High Court.
In the matter of Mr. Justice Tony O’Connor High Court.
The nature and substance in each matter listed above will be presented through court documents in a series of upcoming blog posts on Irish Courts Watch.
In January 2018 in an extremely unprecedented development, four sitting judges of the Supreme Court of India, the second most senior judge Justice J Chelameswar along with Justice RanJan Gogoi, M B Lokur and Kurian Joseph held a press conference.
Addressing the media Justice Chelameswar stated that they were compelled to address the nation through the media since, their repeated requests on a particular matter, were not heeded by the Chief Justice of India.
Justice Chelameswar said he was addressing an extraordinary event in the history of the nation and the Judiciary as an institution, one that put democracy at stake. He went on to say, “It is with great anguish and concern that we thought it proper to highlight certain judicial orders passed by this Court that adversely affected the functioning of justice delivery system and independence of High Courts besides impacting the administrative functioning of the CJI’s office.”
India is the largest Common Law jurisdiction in the world. Its system of law is predicated on and adopted from that of England. Ireland, England’s closest neighbor, and former colony has also made it the basis of its judicial system. The corollary is that for democracy to exist judicial conduct must conform to the law, not the whim of any individual.
India is not alone among the democratic nations to be threatened by judicial malfunction. According to the American Bar Association, the U.S. Supreme Court overturns the U.S. Ninth Circuit Court of Appeals 80% of the time. A 20% record is a clear and present danger to the constitutional rule of law.
Selective assignment of cases and misprision are documented recurring threats to justice in Ireland. It has and continues to erode public trust in the underlying constitutional guarantee of equal treatment of every citizen under law. The practice of selective assignment of cases and acts of misprision are documented to occur in the Superior and lower courts. The judiciary commonly ignores overt barrister and solicitor malpractice and negligence. Instances of flagrant bias favouring one party over another are manifest.
The European anti-corruption body, Group States Against Corruption (GRECO), has found Ireland to be “globally unsatisfactory”, particularly in areas of judicial appointment and independence. In response to GRECO findings and what The Honourable Mrs. Justice Denham, CJ stated was of “real concern” and a “significant institutional vacuum”, the legislature passed the “Judicial Council Bill 2017” establishing the mechanism for dealing with complaints against sitting judges.
In contrast with many other countries, including England, Wales and Canada, as well as in regulated professions in Ireland, under the new law the public will not know when a judge has been rebuked. Such findings will be held in secret, the entire process will be held in private. The law also provides a fine of up to 5000 euro or a jail term of up to 12 months for the disclosure or publication any document or evidence used in such an inquiry. The law in the above-mentioned common-law counties clearly permits the name and outcome regarding a judge in such proceedings to be made public
