Lay litigant loses challenges to District Court judges


Kevin Tracey -v- Judge Malone and Anor, DPP as a notice party. High CourtJudgment was given by Mr Justice John Cooke on January 20th, 2009.


A law litigant who sought a series of rulings against Judge Miriam Malone and Judge Bridget Reilly of the District Court failed in his application and received a declaration confirming his entitlement to retain a professional stenographer at his own expense.


The case concerned an attempt by a lay litigant to challenge the manner in which two District Court judges conducted hearings where he had been charged with road traffic offences.

Mr Tracey appeared before Judge Malone on September 25th, 2006, to answer 12 summonses relating to road traffic offences.

On October 12th, 2006, he appeared before Judge O’Reilly. On both occasions he represented himself and sought to raise a number of “preliminary issues”.

On October 20th he applied to the High Court seeking to quash the “rulings or orders” made during these hearings, and also an order staying the District Court proceedings.

He also sought an order to force the District Court to supply him with a true copy of the declaration of service of the summonses; to hear sworn evidence of each charge before making a decision on jurisdiction; allow him a full hearing at a separate date on the “preliminary issues”; direct the DPP not to maintain any prosecution that had not been started as a result of an official direction of his office; and a direction that the Attorney General’s scheme relating to legal costs apply to him.

The applicant appeared on foot of the summonses at the hearings before the first and second names respondents respectively on September 25th and October 12th, and pleaded not guilty to the offences, although he objected to having to enter a plea before a hearing on the “preliminary issues”. Mr Justice Cooke said that therefore there was a criminal proceeding which had opened before the District Court.

“It is a well-established principle . . . that the court should be slow to intervene in a criminal proceeding which is under way in an inferior court especially where the alleged irregularities sought to be controlled are capable of being decided by the trial judge in the course of the trial and if necessary upon appeal,” he said.

However, in order to avoid further unnecessary argument and delay in the resumed trial, the court would examine the various complaints set out in the list contained in the statement of grounds.

The first concerned the court’s alleged refusal to allow Mr Tracey to use the services of a contracted stenographer.

Both the judges in question and the DPP had confirmed that there was no need for the permission of the court for the applicant to be accompanied in open court by a person to take notes on his behalf, whether a professional or a gifted amateur, subject to orderly conduct of the proceedings.

After describing in his statement exchanges with the judge concerned, the applicant had conceded: “The judge then confirmed that there was no issue with the use of a stenographer.”

Mr Justice Cooke said that therefore he would be prepared to confirm by declaration the applicant’s entitlement to engage at his own expense the services of a stenographer, subject to the entitlement of the court to conduct the case efficiently.

He added that this was not to be construed as the applicant having established any unlawful refusal or obstruction; quite the contrary, he said.

Mr Tracey had also claimed he was refused the use of a “McKenzie friend” in court, but later in his affidavit conceded that he was granted permission in the afternoon. “Therefore this claim for relief is unfounded in fact,” Mr Justice Cooke said.

Mr Tracey also challenged the validity of the summonses, citing sections X and XII of the Petty Sessions (Ireland) Act 1851. However, Mr Justice Cooke pointed out that the summonses were issued under the administrative procedure introduced by S 1 of the Courts (No 3) Act 1986, and met its requirements.

In any case, he said, any procedural defect in the issuing of the summonses was cured by the applicant’s appearance on the day to answer them. “As a result, the applicant’s grievances under these headings are misconceived and unfounded,” he said.

The applicant also complained that he was denied a fair trial by Judge O’Reilly because there was undue haste in proceeding to the trial of the summonses without an adequate and separate hearing of his “preliminary issues”.

Mr Justice Cooke pointed out that four hours had been devoted to the “preliminary issues” of the stenographer and the McKenzie friend and the outcome had been in his favour. Judge O’Reilly had adjourned the case until a later date with the express intention of dealing with the outstanding issues prior to the substantive trial of the offences.

In these circumstances, “there cannot be said to have been any undue haste or unfairness in the manner in which the second- named respondent dealt with the matters before her,” he said.

Mr Tracey also complained that the solicitor representing the Director of Public Prosecutions had refused to give his name. Mr Justice Cooke pointed out that this claim was misdirected, as it had nothing to do with the court.

He also complained that Judge Reilly had “demanded and intimidated the applicant into taking his place in the witness box”.

Mr Justice Cooke said that even if it was assumed that such alleged directions were amenable to being quashed by the High Court, which was highly doubtful, no purpose would be served, as the directions were spent.


It followed that all the claims for relief are unfounded and must be refused, Mr Justice Cooke said.

The judge also said that the claim directed at the DPP was misconceived and was beyond the competence of the court.

He ruled that the applicant also had no legal entitlement to the Attorney General’s scheme.

The full judgment is on

Mr Tracey represented himself; Sunniva McDonagh SC (BL when case began), instructed by the chief prosecution solicitor for the DPP.