Challenger must show his rights infringed by impugned legislation

Con O'Connell (applicant) v Ireland, the Attorney General, Minister for Jus- tice and Minister for Finance (respondents).

Judicial Review - Proceedings instituted against Ireland, the Attorney General and Ministers for Health, Finance and Social Welfare arising out of matters relating to the Disabled Persons (Maintenance) Allowance Regulations - Plaintiff in filing notice of trial required to pay stamp duty - Plaintiff did not have sufficient funds - Ex-parte application for an order directing the State authorities to waive the requirement for the payment of stamp duty - Legal representation assigned to the plaintiff for the purpose of making a formal application - Delay - Plaintiff subsequently paid the said stamp duty and matter decided - Whether impecunious plaintiff barred from access to the courts due to the requirement to pay stamp duty - Whether discrimination under the Constitution - Locus standi - Courts of Justice Act 1936 (No.48), section 65.

The High Court (before Mr Justice Geoghegan): judgment delivered 31 July 1997.

IN other jurisdictions the widely accepted practice of courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming a victim of it. This general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right. In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger's own circumstances.

In the instant case the applicant alleged, that because he had not sufficient funds to pay stamp duty, he was blocked in his right of access to the courts. Whether the attack is ultimately on the statute or the statutory instrument, the applicant had no locus standi because he was not in fact damaged by the operation of either the Act or the regulations made under it. His access to the court was not prevented because he actually did borrow the money to pay the stamp duty without any liability for interest and not only that, but he went on to win his action in the High Court and on appeal in the Supreme Court and recovered all his out of pocket expenses from the State.

The High Court so held in dismissing the applicant's application.

Brendan Grogan SC and Anna O'Connor BL for the applicant; Brian Dempsey SC and Denis McDonald BL for the respondents.

MR JUSTICE GEOGHEGAN said that by order dated 23 July 1996, the applicant was given leave to apply for a declaration by way of application for judicial review in respect of section 65 of the 1936 Act and the regulations made thereunder on the grounds that the said section and regulations bar an impecunious plaintiff from access to the courts and the administration of justice and breaches a plaintiff's constitutional rights.

Mr Justice Geoghegan said that the application now before him was brought pursuant to that leave. A statement of opposition had been delivered and filed which in addition to opposing the substantive grounds of the application challenged the right of the applicant to bring the application both on grounds of locus standi and on the grounds that the application was now, in the events which had happened, merely a moot.

In 1991 the applicant instituted proceedings in the High Court against Ireland, the Attorney General and the Ministers for Health, Finance and Social Welfare and the Southern Health Board arising out of matters relating to the Disabled Persons (Maintenance) Allowance Regulations. By direction of the court, the proceedings were commenced by plenary summons. In August 1994, the applicant, who was litigating in person, made the appropriate application to the Central Office, filed the notice of trial and set down the action for hearing. The applicant was informed by the office that he would have to pay £53 stamp duty.

Not having sufficient funds to pay the stamp duty, he made an ex-parte application to Mr Justice Carney for an order directing the State authorities to waive the requirement for the payment of stamp duty on the grounds that it was blocking his right of access to the courts. The judge adjourned the matter overnight to enable him to consider whether he had any such power to make the order requested and on the following day he ruled that he did not believe that he had such a power but as the point raised was one of considerable public importance, he made an order assigning the applicant a solicitor and senior and junior counsel to be certified under the Attorney General's Scheme for the purposes of making a formal application for waiver of the payment of the stamp duty. That order was made on 12 August 1994. No legal proceedings were taken pursuant to or in the context of that order until the matter appears to have been personally mentioned by the applicant to Mr Justice Carney when he was sitting in connection with Circuit Appeals in Cork in March 1996.

The applicant set out the reasons for the delay in his affidavit. He stated that initially the application was postponed because the case of Coughlan v Ireland and the Attorney General in which a claim somewhat akin to that made in this application was before the High Court and was decided in the summer of 1995. Thereafter the applicant's solicitor was on maternity leave and he was unable to access his then junior counsel.

After many months, he wrote to his solicitor and requested that alternative counsel be retained so that the matter could be expedited. He made an appearance before Mr Justice Carney when he sat in Cork on assizes in March 1996 to indicate and explain the delay in processing the matter and to express his apology to him and to seek permission to continue. Mr Justice Carney gave him such permission.

Mr Justice Geoghegan said that as far as he was aware no formal order of Mr Justice Carney's in respect of the airing of the matter on that day was ever drawn up and he was under the impression that he may not have made any kind of formal order but was regarding the matter as being mentioned to him out of courtesy. Mr Justice Geoghegan said that it was difficult to see what precise order he would have made at that stage at any rate, given that up to then the only order which he made was an order assigning solicitor and counsel under the Attorney General's Scheme.

Mr Justice Geoghegan thought that what Mr Justice Carney had in mind was that the applicant was free to bring any kind of proceedings he liked as might be advised by the counsel and solicitor assigned to him. Nothing much turned on that, however, because an application for leave to bring judicial review proceedings was in fact granted on 23 July 1996.

Mr Justice Geoghegan said that in the meantime, the whole problem of the stamp duty and the inability to pay it had become wholly irrelevant as far as the applicant was concerned. He borrowed the money to pay the stamp duty and any further duty that became payable without any liability for interest from some member of his family and he was successful in his original High Court proceedings which were determined by a judgment of Mr Justice Barron delivered on 31 July 1995. He was awarded his expenses against the State.

Although the order of the High Court was appealed to the Supreme Court, the appeal was not pursued and by consent it was struck out by the Supreme Court and the High Court order affirmed on 25 April 1996. By the same order, the Supreme Court directed the defendants to pay to the plaintiff the costs of the appeal to the Supreme Court in an agreed sum of £726.27. The costs in the High Court were taxed at £1,018.00. It was not in dispute that the High Court costs were paid over to the applicant, enclosed in a registered letter of 25 March 1996, and that the Supreme Court costs were paid over, enclosed with another registered letter of 8 May 1996. Before leave was granted therefore to bring these judicial review proceedings, the original proceedings were entirely disposed of and all costs awarded already paid. However, Mr Justice Geoghegan had little doubt that quite apart from any consideration of whether the applicant might at least have any arguable case on locus standi, Mr Justice Carney would have regarded the granting of leave as in practice, a kind of extension of time for bringing appropriate proceedings in the light of what he had been told in Cork in March 1996 by the applicant himself of the problems which had occurred in the meantime. Mr Justice Geoghegan said that now that this judicial review application had come on for hearing the State was perfectly entitled to argue the locus standi point and linked with it the submission that this application was now moot and that that being so, the court should not grant the relief, particularly when part of the relief might involve a declaration as to the unconstitutionality of the statutory provisions. He was quite satisfied that the respondents' objections on these grounds were well founded and that he should refuse the application without considering the substantive argument, however important and interesting that argument may be. He said that of the number of authorities cited to him two were particularly relevant. Mr Justice Geoghegan referred to the well known case of Cahill v Sutton [1980] IR 269 where it was stated that in other jurisdictions the widely accepted practice of courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming a victim of it.

This general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right. In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger's own circumstances. Mr Justice Geoghegan continued that while that passage, strictly speaking, refers to attacks on the constitutionality of a statutory provision, he thought that it would be equally relevant to an attack on provisions of a statutory instrument if the suggestion was that the statutory instrument was ultra vires the maker of it by reason of its infringing the Constitution. Therefore in this case whether the attack was ultimately on the statute or the statutory instrument, the applicant had no locus standi because he was not in fact damaged by the operation of either the Act or the Regulations made under it.

His access to the court was not prevented because he actually did borrow the stamp duty without any liability for interest and not only that, but he went on to win his action in the High Court and on appeal, in the Supreme Court and recovered all his out of pocket expenses from the State. Of course, even if none of that were so, the State might well have a good answer to the application on the grounds that he could have applied for legal aid but that was not something that Mr Justice Geoghegan needed to consider.

Mr Justice Geoghegan said that the obligation imposed on the applicant to pay stamp duty did not in the events that happened in any way impede his right of access to the courts or lead to his incurring any loss or damage whatsoever. In those circumstances he had no locus standi to bring the application. Mr Justice Geoghegan said that in addition to the principle of locus standi, there was the related principle that a court ought not pronounce on the constitutionality of legislation if to do so would effectively be a moot (McDaid v Judge Sheehy [1991] 1 IR 1).

Mr Justice Geoghegan concluded that the interesting question of whether a person who is genuinely deprived of access to the courts by reason of an inability to pay the stamp duty and court fees, cannot be considered in this case but must await an appropriate case where the point does genuinely arise.

Solicitors: Gerald Y. Goldberg & Co (Cork) for the applicant; Chief State Solicitor for the respondents.