Fitzgibbon v AG

Factual and Procedural Background

The Plaintiff sought interlocutory relief in the High Court to (1) restrain the holding of two constitutional referenda scheduled for 7 June 2001 and (2) restrain the counting of any votes cast. On 6 June 2001, Judge Murphy refused both applications: the first because polling on islands and by post had already commenced, and the second on the conventional interlocutory criteria—no fair issue to be tried, the balance of convenience, and the availability of damages as an adequate remedy. Proceeding ex parte and self-represented, the Plaintiff appealed only the refusal of the second injunction to the Supreme Court. An ex tempore judgment delivered by Judge Denham (concurring with Judge Keane, the Chief Justice) disposes of this appeal.

Legal Issues Presented

1. Whether the Plaintiff satisfied the test for an interlocutory injunction, as articulated in Campus Oil, to restrain the counting of referendum votes.
2. Whether the Supreme Court possessed jurisdiction to grant an order that would interfere with the constitutional process of direct democracy once the poll had taken place.

Arguments of the Parties

Appellant’s Arguments

• Inability to present a cogent case without expert evidence and legal representation.
• Irreversibility of the referendum outcome once announced, rendering post-count remedies ineffective.
• The balance of convenience favoured preservation of the status quo because grave constitutional issues affected all citizens and EU stakeholders, whereas no urgency existed in declaring a result.
• Denial of legal aid infringed the Plaintiff’s right to equality before the law and natural justice.
• Self-representation was practically impossible in complex constitutional litigation, contrasting with legal aid availability in other contexts.
• Reliance on McKenna v An Taoiseach (No 2) to argue that governmental advocacy in referenda constituted impermissible interference warranting judicial intervention.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Denham agreed with the Chief Justice that the High Court’s refusal was correct. The Supreme Court observed that:

• The Plaintiff’s factual assertions did not reach even the threshold of demonstrating a fair issue under the Campus Oil test.
• The order sought would halt “an exercise in direct democracy.” Such an intrusion would require clear jurisdictional authority, which was not apparent on the facts presented.
• Given the constitutional importance of referenda and the separation of powers, judicial intervention after polling had occurred would undermine the people’s decision-making role.

Holding and Implications

APPEAL DISMISSED.

The counting of votes proceeded without judicial restraint. The decision affirmed established interlocutory-injunction standards and underscored judicial reluctance to interfere with the referendum process. No new precedent was set beyond applying existing principles to the specific procedural context.