Hall & anor v Stepstone Mortgage Funding Ltd

Factual and Procedural Background

This opinion arises from an application for leave to apply for judicial review initiated by the Plaintiff, who sought to quash an order for possession of his family home made by a Circuit Court judge on 16th July 2015. The Plaintiff initially brought the application ex parte and subsequently the Defendant, the party who obtained the possession order, was put on notice. The Defendant raised a preliminary objection that the Plaintiff had named the wrong respondent in the judicial review proceedings, contending that the Defendant, a private entity, did not carry out public law functions and therefore should not be the respondent.

Legal Issues Presented

1. Whether a purely private entity, which is a party to the underlying proceedings, can be named as a respondent in judicial review proceedings challenging a court order.
2. Whether the Circuit Court judge who made the possession order should have been named as a respondent, particularly in light of any allegations of mala fides or personal misconduct.
3. Whether the State should be joined as a respondent or notice party in judicial review proceedings challenging judicial decisions.
4. Whether an allegation of mala fides removes the obligation to name the other party to the litigation as respondent.

Arguments of the Parties

Defendant's Arguments

• The Defendant contended that as a private entity without public law functions, it should not be named as a respondent in judicial review proceedings.
• Before the 2015 Rules of the Superior Courts (Judicial Review), the appropriate respondent would have been the judge, though the Defendant might have been named as a notice party.
• The Defendant argued there was no decision of its own being impugned, and thus it should not be the respondent.
• As a fallback, the Defendant submitted that the Circuit Court judge should be named as respondent given the challenge to the manner in which the judge conducted the proceedings.
• The Defendant suggested that the Plaintiff's affidavit contained mistruths and questioned the bona fides of the leave application.
• It was argued that alternative remedies, such as appeal, were available but not pursued by the Plaintiff.
• The Defendant opposed the Plaintiff’s request to withdraw the original affidavit, asserting reliance on some of its contents.

Plaintiff's Position

• The Plaintiff did not strenuously oppose the preliminary objection being decided as a preliminary issue and sought clarification on whether the correct procedure was followed in naming the respondent.
• The Plaintiff alleged procedural unfairness in the hearing but did not allege mala fides or personal misconduct by the judge.
• The Plaintiff sought to withdraw the original affidavit, describing it as drafted "in anger," and indicated a more focused approach to the issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Murtagh v. Board of Management of St. Emer’s National School [1991] 1 I.R. 482	Definition of entities subject to judicial review based on carrying out public law functions.	Used to illustrate that judicial review applies to public law functions, but not necessarily to private entities.
Bloxham (In Liquidation) v. Irish Stock Exchange [2013] IEHC 301	Clarification of when private entities are within the scope of judicial review.	Supported the argument that private entities without public law functions are generally not proper respondents in judicial review.

Court's Reasoning and Analysis

The Court examined the 2015 Rules of the Superior Courts (Judicial Review), particularly Order 84, rule 22(2A), which requires that the other party to the underlying proceedings be named as respondent in judicial review applications challenging court orders. The Court held that although the Defendant is a private entity without public law functions, it is properly named as respondent because it was the opposing party in the underlying possession proceedings. The Court emphasized that the judicial review must relate to a public law function, here the order made by the Circuit Court judge, but the respondent itself need not be a public law entity.

The Court rejected the Defendant’s submission that the judge should be named as respondent unless there is an allegation of mala fides or personal misconduct, which was not made by the Plaintiff. The Court found that mere procedural complaints or claims of unfairness do not meet the threshold required to name a judge as a respondent. Furthermore, even if such an allegation had been made, it would not remove the obligation to also name the other party to the litigation as respondent.

The Court considered but declined to require the State to be joined as a respondent or notice party at this stage, noting that the State was not a party to the underlying proceedings and that the rules do not envisage routine joinder of the State. The Court explained the procedural mechanisms for involving the State if necessary after leave is granted.

Regarding the Plaintiff’s attempt to withdraw an affidavit, the Court held that once an affidavit is filed it remains subject to comment and criticism, but the Plaintiff may clarify that he no longer relies on it or may file a subsequent affidavit with a more focused approach.

Holding and Implications

The Court issued the following orders:

• DISMISSED the Defendant’s preliminary objection, confirming that the Plaintiff was correct to name the Defendant as respondent and not the Circuit Court judge.
• Deferred the question of whether the State should be joined as a notice party to the determination of the leave application.
• Refused the Plaintiff’s application to withdraw the grounding affidavit, without prejudice to the Plaintiff’s right to disclaim reliance on it or file a subsequent affidavit.
• Reserved costs and expenses related to this preliminary issue to the determination of the leave application.
• Ordered that the parties be heard further to bring the leave application to finality.

The decision clarifies procedural requirements under the 2015 judicial review rules regarding proper respondents in judicial review applications challenging court orders. It confirms that private parties to underlying proceedings are properly named as respondents even though they do not perform public law functions, and that judges are excluded from the title unless there is a serious allegation of mala fides. The ruling does not set new precedent beyond interpreting the application of the rules in this context and leaves open further procedural steps concerning the State and leave to apply for judicial review.