Family law judicial review application out of time

D -v- Judge Flanagan Ors

High Court

Judgment was delivered by Mr Justice Bryan McMahon on November 6th, 2009.

Judgment

No special circumstances existed to permit a family law applicant judicially review an order of Judge Doirbhile Flanagan, as he had delayed in bringing his challenge and was out of time. In the meantime, he had also appealed the order to the High Court, where his appeal was rejected.

Background

The case concerned a family law case where Judge Flanagan made an order on July 10th, 2008, which was perfected on August 7th. The applicant appealed the order to the High Court.

There Mr Justice Murphy made a provisional order dismissing the appeal, but subject to a number of conditions. These included that the applicant make two monthly payments of the mortgage on a named property and that he comply with requests for accounts documentation from a bank.

If these conditions were met, Mr Justice Murphy said he would entertain the appeal on a peremptory basis at the next adjourned date. If they were not met, the provisional order would become absolute. He granted costs to the respondent.

The conditions were not met and the order became absolute on April 12th, 2009. On April 20th the applicant sought and was granted leave to apply for judicial review of Judge Flanagan’s order. In it he sought declarations that sections 9 to 15 and section 32 of the Family Law Act 1995 were unconstitutional.

In his grounding affidavit, he made no reference whatsoever to the fact that he had already unsuccessfully appealed Judge Flanagan’s order to the High Court.

Counsel on behalf of the respondent objected and made submissions under three headings, including undue delay.

According to the rules of the superior court, an application for leave to apply for judicial review should be made promptly and in any event within three months from the date where grounds for the application first arose, unless the court considered that there was good reason for extending the period.

Where the relief sought is an order of certiorari in respect of a judgment, the application should be made within six months from when the impugned order was made. In this case, the delay was nine months, so the applicant was clearly out of time.

Counsel for the applicant argued for an extension of the period, stating that the delay was not egregious, the applicant was a lay litigant for some of the relevant period and he was raising serious matters of public importance, dealing with the family and the right to earn ones livelihood, both protected under the Constitution.

He also claimed that the highlighted provisions of the Act were contrary to certain provisions of the European Convention on Human Rights.

In his affidavit, the applicant said he had been waiting for the perfected order and to receive the file from his solicitors, who had come off record.

Decision

Mr Justice McMahon said that the applicant made no reference to the fact that had he appealed Judge Flanagan’s order, that Mr Justice Murphy’s order was in full force when leave was granted and that the affidavit had been sworn and signed on March 9th, three days before his appeal was heard.

“This date is significant because it meant that the applicant was clearly contemplating taking judicial review proceedings against Judge Flanagan’s order before he appealed to Murphy J, but chose not to do so until Murphy J had given his decision,” Mr Justice McMahon said.

“It seems to me that in these circumstances, one can have very little sympathy with the applicant’s application seeking the court’s indulgence in relation to initial delay of at least eight months.”

He added that the fact that the applicant failed to alert Mr Justice Michael Peart, who had granted leave to the appeal, was “a significant and serious omission”.

The application created serious procedural issues relating to the propriety of judicially reviewing the Circuit Court order in circumstances where that order had been overtaken by the High Court order.

To compound the matter further, the applicant came before a different judge of the High Court on October 5th seeking to withdraw his appeal which by that time had been dismissed.

“It is blatantly clear to me that if the applicant was dissatisfied with Judge Flanagan’s order, he could either appeal her decision or seek leave to have her order judicially reviewed on stated grounds,” he said.

Mr Justice McMahon added that there were other parties awaiting the outcome of the proceedings, notably the spouse and dependent children, who should not be kept in legal limbo while the applicant inappropriately prolonged the process.

“I have little hesitation in refusing the applicant’s request that the court should overlook the delay in all the circumstances outlined above,” Mr Justice McMahon said. In these circumstances, it was unnecessary to address the substantive issues.

However, he added that it would be unfair to end the proceedings without complementing the present legal team engaged by the applicant and serious constitutional issues were raised.

He refused the application.

The full judgment is on www.courts.ie

David Langwallner BL, instructed by Paul McNally Co, Dublin, for the applicant; Gerard Durcan SC and Rossa Fanning BL, instructed by the Chief State Solicitor, for the respondent.