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Topic 10- Right of Access to the Courts (Introduction (One has the right…
Topic 10- Right of Access to the Courts
Introduction
One has the right of access to the courts
Free standing constitutional right and means by which other constitutional rights are enforced
State (Quinn) v Ryan
:
Facts: S29 Petty Sessions (Ireland) Act 1851 provided for immediate removal from IReladn to Uk under a British warrant
Applicant successfully challenged his detention under another warrant
Immediately rearrested (outside four courts), driven across border and ferried over to England
Held: Act and Scheme= unconstitutional
SCHEME DEPRIVED APPLICANT OF ANY POSS OF CHALLENGING HIS DETENTION AS UNCONSTITUTONAL
Plan was to 'eliminate the Courts and to defeat the rule of law as a factor in Government'
Held: Person had right of access to HC to challenge warrants
Courts have whatever powers are necessary to vindicate that right
Macauley v Miniseter for Post and Telegraphs
:
Facts: S2(1) of the Ministers and Secretaries Act 1924 required AG's permission before suing government minister
Held: There is right of access to the Court to vindicate rights
Aspect of personal rights under A40.3.2
Also flows from full original jurisdiction of HC
HELD: Act unconstitutional violation of that right
Rights would be meaningless if inability to litigate
Blehein v Minister for Health and Children
Facts; Challenge to S260 or Mental treatment act 1945 required D to be acting in 'bad faith' or 'without reasonable care' before leave could be given to commence civil proceedings under Act
Held: Restricted access to Courts is not per se unconstitutional
No right absolute e.g. substantial grounds requirement for JR
However, COurt applied Heaney proportionality test and noted that the limitation here went too far
Regard to importance of right in issue- a person's liberty
Bula v Tara Mines Ltd
Facts: Claim that D has trespassed into its mine and mined ore
only way to proce was inspecting tunnels
Held; Impossibel to vindicte right to litigate if not provided with inspection facilities
= innovative invocation of right
= practical level- procedural use of right
Limitation Periods
O'Brien v Keogh
Facts: background of Statute of Limitations 1957- provided for 3 year limitation period for personal injury
6 years for people under disability (including infancy)
However, children who were in the custody of their parent at time of accident did not benefit from increased period
Reason: assumed if parent was present, they could commence litigation
Held: No breach of A40 (equality) but that the right of access to courts breached
Two examples where unfairness could arise
if child's parent died in accident
if parent was negligent and child's cause of action wwas against the parent
Tuohy v Courtney:
Facts: P wanted to sue solicitor for negligence in purchase of home
P believed he had purchased a fee simple, only received leasehold interest
Issue: s11 of Statute of Limitations- 6 year limitation from date cause of action accrued
Argued unconstitutional as did not provide for 'date of discoverability exception'
Held: Right of access to court prima facie infringed
However: Held Oireachtas had reached permissible balance between various competing inerests
Identified following factors as relevant
P's right of access to court
D's right to be protected from unjust claims
Common good of avoiding stale or delayed claims
Held: Not role of court to impose its balance
Proportionality, hadnt acted irrationally
Noted historical role of limitation periods and reasons for them
protection from stale claims
promotion of expeditious trials
promotion of finality in relation to potential claims
Shortened Time Periods in which to Commence Judicial Review Proceedings
Restricted Time Periods to commence JR proceedings may be unconstituional
Shortened time periods not per se unconstitutional, but key issue= whether there can be flexibility in appropriate cases
Re A26 and the Illegal Immigrants Trafficking Bill 1999:
Facts: Challenge to 14 day time limit for JR of immigration decisions
Issue: Applicants out of time (no fault of their own)
Held: Rejected argument: Court noted proportionate measure having regard to the state's right to ensure efficient immigration system
Also noted period of time could be extended where the court felt 'good and sufficient reason'
White v Dublin City Council
Facts: Challnege to 2 month time limit for planning decisions (no flexibility)
Issue: Applicants out of time (no fault of their own)
Held: Court had to balance
right to litigate
against D's right to protection against unjust or burdensome claims
and the public interest in avoidance of stale claims
Held: unconstitutional
Due to strict time limit
Might be different if perfectly poss to bring proceedings within tight time limit
Rule of Thumb:
Short period unconstitutional unless power of extension
Civil Legal Aid
Magee v Farrell
Facts: P's son had died in Garda custody
Wanted free legal aid to cover representation at inquest
Held; SC- the right of access o the courts did not give rise to a right to
civil legal aid
Court referred to C v Legal Aid Board: Held: there was no entitlement to free legal aid for nullity proceedings, but that where such a stat scheme did exist, here was an obligation to administer the scheme fairly
Two year delay in processing application= breach of fair procedures
Right of Appeal to SC
Following establishment of C of A- any automatic right to appeal to SC abolished
C of A hears most appeals from decisions of HC
In order to appeal to SC parties must apply to SC for leave to do so
Ordinarily parties would appeal from C of A, BUT constituion provides for 'leapfrog' appeals directly from HC to SC
Either case- test= same: 'THE DECISION INVOLVES A MATTER OF GENERAL PUBLIC IMPORTANCE OR AN APPEAL TO SC IS NECESSARY IN INTERESTS OF JUSTICE'
Grace v An Bord Plenala
Facts: Applicant sought to appeal decision of HC directly to SC (which meant C of A since estab of the court
Issue: Planning Acts precluded an appeal to SC
Wheher an appeal to SC possible where an appeal to the C of A no
Held: Appeal to SC possible
A34.4 provided the C of A has appellant jurisdiction from HC subject to 'exceptions' and regulations as may be prescribed by law
That was the same language used re SC prior to estab of C of A
In Contrast to language in A34.5.1 dealing with 'leapfrog' appeals only referred to 'regulation by law and not to 'exceptions'
Difference in language= instructive
Effect= appeal to SC could be 'regulated' by statute
but not precluded
Future Development
Persona Digital Telephony v Minister for Public Enterprise
Court expressed view re access to justice
noted increased cost and complexity of litgation
At least an arguable case that the constitutional right of access to court may include an entitlement that right be effective, not just as a matter of law and form, but also in practice
If that being so, may well be argument- increasinging problem emergin re that constitutional entitlement
Court expressed concerns about practical diffs in accessing justice
may manifest themselves in a more active judicial development of this right