Factual and Procedural Background
The Applicant is awaiting trial in the Central Criminal Court on multiple counts of rape and sexual assault. He was extradited to this State on unrelated charges, and due to the rule of specialty, prosecution for the sexual offences required a waiver from the relevant authority in the requested state. On 29th July 1997, the Home Secretary issued a certificate of waiver. On 7th February 2000, the Applicant sought leave from O'Neill J. to commence judicial review proceedings to prohibit the Director of Public Prosecutions from continuing the prosecution and to quash the District Judge's order returning the Applicant for trial. The proceedings also sought to challenge the Home Secretary's certificate of waiver and to file an additional affidavit regarding the Home Secretary's constitutional position.
The Applicant was granted leave, and directions were given for service on the various respondents, including service on the British Ambassador in Ireland on behalf of the Home Secretary. The Home Secretary then applied to set aside the order of O'Neill J. and to dismiss the proceedings against him.
Legal Issues Presented
- Whether the service of judicial review proceedings on the British Ambassador in Ireland was lawful.
- Whether service of the proceedings outside the jurisdiction, specifically in London, was valid without leave of the Court.
- Whether the Home Secretary is entitled to sovereign immunity from these proceedings.
- Whether the Home Secretary waived sovereign immunity by issuing the certificate of waiver.
- Whether an order made ex parte can be set aside by application to a judge other than the one who made it.
- Whether the Court has inherent jurisdiction to permit service of judicial review proceedings outside the jurisdiction.
Arguments of the Parties
Home Secretary's Arguments
- The initial service of proceedings at the British Embassy in Dublin was not lawful due to diplomatic immunity and the inviolability of the premises under the Vienna Convention on Diplomatic Relations.
- Subsequent service of proceedings at the Foreign and Commonwealth Office in London was ineffective because no leave was granted to serve outside the jurisdiction, and judicial review proceedings are not encompassed by the relevant Rules of the Superior Courts (Order 11 or 11a).
- The Home Secretary is entitled to sovereign immunity and cannot be impleaded in these proceedings.
- The Home Secretary did not waive sovereign immunity by issuing the certificate of waiver.
- The order of O'Neill J. granting leave and authorising service should be set aside.
Applicant's Arguments
- Judicial review proceedings were to be consolidated with a habeas corpus application challenging the Home Secretary's certificate of waiver.
- It was proper to include the Home Secretary as a Respondent to comply with procedural fairness.
- If the Home Secretary chose not to participate, the certificate could be challenged without complaint about absence.
- The Court has an inherent jurisdiction to permit service of proceedings outside the jurisdiction despite Order 11 not applying to judicial review.
- The Home Secretary waived sovereign immunity by issuing the certificate.
- Requested adjournment of the sovereign immunity issue pending the European Court of Human Rights' decisions on related cases.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hellenic Lines Limited v. Moore, 120 U.S. App. D.C. 288 |
Diplomatic immunity forbids personal service of proceedings upon an ambassador without waiver or acceptance. |
Supported the conclusion that service on the British Ambassador was unlawful and the order permitting such service should be set aside. |
| Brennan v. Lockyer [1932] I.R. 100 |
Order 11 of the Rules of the Supreme Court exhaustively enumerates cases permitting service out of jurisdiction. |
Rejected Applicant's claim of inherent jurisdiction to serve outside jurisdiction; held that service outside jurisdiction must comply with Order 11. |
| Fusco v. O'Dea [1994] 2 I.R. 93 |
Confirmed that categories for service out of jurisdiction are exhaustive and judicial discretion applies only where requirements are met. |
Reinforced that judicial review proceedings cannot be served outside jurisdiction without express authority under Order 11. |
| Canada -v- Employment Appeals Tribunal [1992] 2 I.R. 484 |
Doctrine of sovereign immunity applies unless foreign government activity is not governmental in nature. |
Accepted that Home Secretary is entitled to sovereign immunity regarding the certificate. |
| Voluntary Purchasing v. Insurco Ltd. [1995] 2 I.L.R.M. 145 |
Court has inherent jurisdiction to set aside ex parte orders on application by affected parties. |
Supported Home Secretary's right to apply to set aside O'Neill J.'s ex parte order. |
| St. George's Healthcare NHS Trust v. S. [1998] 3 W.L.R. 936 |
Discussed principles governing ex parte orders including duty of full and frank disclosure. |
Rejected argument that only the judge who made the order can hear applications to set it aside; emphasized counsel's duty of disclosure. |
| Doyle v. Commissioner of An Garda Siochana [1999] 1 IR 249 |
European Convention on Human Rights is not part of Irish domestic law; courts cannot enforce it directly. |
Rejected Applicant's contention that European Court of Human Rights decisions could affect sovereign immunity in domestic proceedings. |
Court's Reasoning and Analysis
The Court first considered the service of proceedings on the British Ambassador in Ireland. It held that under the Vienna Convention on Diplomatic Relations, as incorporated into domestic law by the Diplomatic Relations and Immunities Act 1967, the premises and person of the Ambassador are inviolable and immune from service of process. The Court relied on international law and precedent from the United States Court of Appeals to conclude that service on the Ambassador was unlawful and the order permitting such service must be set aside.
Regarding service of proceedings in London, the Court accepted that no leave was granted to serve outside the jurisdiction and that judicial review proceedings are not covered by Order 11 or 11a of the Rules of the Superior Courts. The Court rejected the Applicant's argument that it had inherent jurisdiction to permit such service, citing binding precedent that the enumerated categories for service outside jurisdiction are exhaustive and must be complied with.
On the issue of sovereign immunity, the Court acknowledged the doctrine as part of domestic law, applying it to the Home Secretary who was entitled to immunity regarding the certificate. The Court rejected the Applicant's request to adjourn the issue pending decisions of the European Court of Human Rights, holding that the Convention is not part of domestic law and those decisions have no direct effect.
The Court dismissed the argument that the Home Secretary waived sovereign immunity by issuing the certificate, finding no basis for implied waiver.
The Court held that applications to set aside ex parte orders may be heard by any judge of the High Court, rejecting the argument that only the judge who made the order may hear such applications. It emphasized the importance of full and frank disclosure on ex parte applications and criticized counsel for failing to draw relevant statutory provisions and case law, including sovereign immunity and diplomatic immunity, to the attention of O'Neill J. The Court found that had these been disclosed, the order would not have been granted.
Holding and Implications
The Court SET ASIDE the order of O'Neill J. granting leave to bring proceedings against the Home Secretary. Consequently, the direction authorising service upon the British Ambassador in Ireland was also set aside. The purported service of the proceedings in London was declared null and void and of no effect.
The direct effect is that the proceedings against the Home Secretary cannot continue on the basis of the challenged service and waiver certificate. The Court did not set any new precedent but reaffirmed existing principles regarding diplomatic immunity, sovereign immunity, and procedural rules for service outside jurisdiction and ex parte orders.