Beyond Habeas Corpus: High Court Clarifies the Scope of the Article 40.4 Court-Fee Exemption

1. Introduction

In McGreal v Concannon & Brown and McGreal v Courts Service Staff & Ors ([2025] IEHC 425) Mr Justice Cregan was asked to decide whether the plaintiff, Mr Patrick McGreal, had to pay High Court fees on two sets of plenary proceedings. The dispute arose when the Central Office declined to issue his summonses without payment; McGreal claimed that the actions were “proceedings under Article 40.4” of the Constitution and therefore exempt under Statutory Instrument (S.I.) 492/2014.

The ruling creates an important precedent on how far the fee exemption in Article 40.4 extends. The Court drew a decisive line between:

• Ordinary civil claims (such as allegations of judicial misconduct or procedural unfairness), and
• Claims that fundamentally concern the unlawful deprivation of personal liberty.

One set of McGreal’s proceedings fell on each side of that line, giving the Court a clear vehicle to articulate the new principle.

2. Summary of the Judgment

1. The first action (against the county registrar and the Chief State Solicitor) was not concerned with McGreal’s personal liberty; it challenged the handling of an electoral petition. The Court held that it does not qualify for the Article 40.4 exemption and ordinary fees must be paid.
2. The second action (against Courts Service staff, An Garda Síochána and the Garda Commissioner) alleged false arrest, false imprisonment and assault. Those claims do directly engage Article 40.4.1° (the right not to be deprived of liberty save in accordance with law). As such, the action is fee-exempt under S.I. 492/2014.
3. The Court rejected a restrictive defence argument that only habeas corpus applications (Articles 40.4.2°–3°) attract the exemption, confirming that the phrase “proceedings under Article 40.4” in the 2014 Order embraces all Article 40.4 claims, whether or not the applicant is presently in custody.

3. Analysis

3.1 Precedents Cited

• McGreal v Minister for Housing (No 2) [2024] IEHC 728
  Humphreys J warned that “adding ‘Article 40.4’ to the top of the page” does not magically confer fee-free status. Cregan J adopted that caution to dismiss the fee request on the first summons.
• Aron Gokul v Aer Lingus [2013] IEHC 432
  Quoted to justify the Court’s jurisdiction to extend time for late appearances – relevant to procedural skirmishes but not decisive on the fee question.
• Cahill v Governor of Curragh Military Detention Barracks [1980] ILRM 191 & Re Gallagher [1996] 3 IR 10
  Cited by the defendants to argue that liberal approaches to liberty applications can ‘debase’ the habeas corpus remedy. Cregan J distinguished them because McGreal’s second action was not a habeas corpus motion at all but a plenary claim for past unlawful detention.

3.2 Legal Reasoning

1. Textual Interpretation of S.I. 492/2014
   • Section 5(a) exempts “proceedings under Article 40.4 of the Constitution.”
   • Earlier fee orders (e.g. S.I. 341/1989) spoke narrowly of “habeas corpus”.
   • The 2014 Order’s broader wording shows deliberate legislative intent to enlarge the exemption beyond live custody challenges.
2. Constitutional Context
   • Article 40.4.1° sets a substantive right (“No citizen shall be deprived …”) distinct from the procedural remedy in Article 40.4.2°.
   • Therefore, proceedings alleging historic or declaratory breaches of liberty still qualify.
3. Application to the Facts
   a. First action: claims of judicial misconduct, breach of fair procedures, and damages for reputational harm. No allegation that he was deprived of liberty by the defendants ⇒ fee payable.
   b. Second action: explicit allegations of arrest, detention, invasive searches, physical assault ⇒ engages personal liberty ⇒ fee-exempt.

3.3 Impact of the Decision

1. Clarifies Fee Law: Litigants and court staff now have a principled test: Does the pleading centre on an alleged unlawful deprivation of personal liberty? If yes, fees are waived; if not, they must be paid.
2. Limits Tactical Pleading: Simply sprinkling “Article 40.4” language over an ordinary civil claim will not work. Courts will scrutinise the substance of the action.
3. Wider Access to Justice for Liberty Claims: Victims of short-term or historic wrongful arrests can issue fee-free proceedings, aligning practice with the constitutional importance of personal liberty.
4. Guidance for Central Office: Registry staff may accept fee-free filings when it is apparent on the face of the summons that the core relief concerns unlawful detention.
5. Judicial Case-Management Signals: The judgment also sends a cautionary message on abusive litigation conduct; repetitive ex parte motions and courtroom disruptions may lead to striking-out orders.

4. Complex Concepts Simplified

• Article 40.4 – A constitutional guarantee of personal liberty. Sub-section 1° is the substantive right; sub-sections 2°–3° provide the habeas corpus procedure.
• Habeas Corpus – A swift application (often by informal letter) to have a detainee produced in court and released if detention is unlawful. Normally used when someone is currently in custody.
• Plenary Summons – The originating High Court document in a full-trial action seeking declarations, injunctions or damages, as opposed to summary (fast-track) relief.
• Ex Parte Application – A request made to the Court without notice to the other side, usually reserved for urgent or procedural matters.
• S.I. 492/2014 – The current order prescribing High Court/Court of Appeal/Supreme Court fees. Section 5 lists categories that are fee-exempt.

5. Conclusion

McGreal (No 2) establishes a two-limb test for the Article 40.4 fee exemption:

1. The proceedings must genuinely allege a deprivation of personal liberty contrary to Article 40.4.1°, and
2. The relief sought must be logically connected to that liberty interest (declarations, damages or immediate release).

By holding that past or declaratory liberty claims qualify, while routine civil grievances do not, the High Court strikes a balance between preventing fee-avoidance strategies and safeguarding a core constitutional right. The judgment will guide court offices, litigants and practitioners, and will likely be cited wherever the scope of statutory fee exemptions is in dispute. Equally, the ruling underscores the Court’s intolerance of procedural abuse, reinforcing the integrity of the administration of justice.