J.S v M.K (Approved)

Factual and Procedural Background

The Applicant initiated judicial review proceedings challenging decisions related to a Circuit Court family law case. The litigation history is extensive and has been previously considered in two judgments: one by the Court of Appeal and one by this Court. Leave to apply for judicial review was granted by the Court following an ex parte application, permitting the Applicant to seek reliefs including certiorari quashing a Circuit Court judge’s decision refusing access to certain court records, declarations regarding excessive delays in court proceedings, damages limited to breaches caused by unreasonable delays, and costs. No appeal has been taken against the grant of leave.

The Applicant originally named three Circuit Court judges as respondents, but the Court ordered that the proceedings be amended to substitute "Judges of the Northern Circuit" as respondents to reflect the correct title. The Chief State Solicitor's Office (CSSO) subsequently moved to strike the Judges of the Northern Circuit out of the proceedings on the basis that their joinder was improper under Order 84, rule 22(2A) of the Rules of the Superior Courts ('RSC'). This motion is the subject of the present judgment.

The CSSO affidavit grounding the motion was sworn by a solicitor on record for the Second Named Respondents. The Applicant opposed the motion and filed a lengthy affidavit, but the Court noted that much of the Applicant’s affidavit addressed substantive issues rather than the narrow joinder issue. The First Named Respondent did not participate in the motion.

Legal Issues Presented

1. Whether the Judges of the Northern Circuit were properly joined as respondents in the judicial review proceedings under Order 84, rule 22(2A) of the Rules of the Superior Courts.
2. The correct interpretation and application of Order 84, rule 22(2A), particularly concerning the exclusion of judges from judicial review proceedings unless allegations of mala fides or personal misconduct are made.
3. Whether the reliefs sought by the Applicant, including certiorari, declarations, damages, and costs, affect the application of the joinder rules under Order 84, rule 22(2A).
4. The appropriateness of striking out the Judges of the Northern Circuit from the proceedings pursuant to Order 15, rule 13 of the Rules of the Superior Courts or the inherent jurisdiction of the Court.

Arguments of the Parties

Second Named Respondents' Arguments

• The joinder of the Judges of the Northern Circuit was improper under Order 84, rule 22(2A) because the judicial review application relates to proceedings in court, and the object of the application includes quashing orders made therein.
• The rule excludes judges from being named as respondents unless relief is grounded on allegations of mala fides or personal misconduct, which do not arise here.
• The proper respondents are the other parties to the underlying court proceedings, not the judges themselves.
• Striking out the Judges as respondents is justified either under Order 84, rule 22(2A) or on the basis of established legal principles protecting judicial independence.
• They declined to pursue relief under Order 19, rule 28 of the Rules of the Superior Courts, as that would require engaging with the merits of the Applicant’s case, which implicates judicial independence.

Applicant's Arguments

• The joinder of the judges was correct and complies with domestic, EU, international law, and judicial ethics.
• The Applicant disputes the exclusion of the judges despite the Court’s earlier refusal of leave to allege mala fides or misconduct, continuing to assert loss of immunity and improper conduct claims.
• Initial submissions focused mainly on substantive issues and sought to revisit decisions made at the leave stage, rather than addressing the joinder issue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A.P. v. DPP [2011] 1 IR 729	Limits on review of leave decisions and procedural boundaries.	Referenced to confirm that the Court cannot revisit leave decisions in the current motion.
Keegan v Garda Síochána Ombudsman Commission [2015] IESC 68	Procedural limits on judicial review applications.	Supported the principle that leave decisions are not revisited in interlocutory motions.
O'Connor v Carroll [1999] 2 IR 160	Impropriety of joining judges as parties absent mala fides; judicial independence.	Used to underscore the undesirability of judges participating as parties in judicial review.
O.F. v. O'Donnell and Others [2010] 1 ILRM 198	Judicial independence; non-joinder of judges except for mala fides allegations.	Affirmed the principle that judges should not be joined absent serious misconduct claims.
Hall v Stepstone Mortgage Funding Ltd [2015] IEHC 737	Interpretation and application of Order 84, rule 22(2A) RSC.	Confirmed that judges should not be named as respondents; other parties must be named instead.
T.D. v Judge Ni Chulachain, Ireland and the Attorney General [2016] IEHC 741	Application of Order 84, rule 22(2A) regarding exclusion of judges.	Reinforced that judges should be struck out from proceedings on filing or hearing.
M v M [2019] 2 IR 402	Clarification of joinder rules and exceptions for mala fides allegations.	Favoured interpretation that judges are excluded unless misconduct is alleged; other parties are respondents.
Brady v. Revenue Commissioners [2021] IECA 8	Alternative interpretation of Order 84, rule 22(2A) regarding naming courts as respondents.	Criticized for misinterpretation; contrasted with M v M.
Tallon v DPP [2022] IEHC 322	Preferred M v M approach over Brady; affirmed non-joinder of judges absent misconduct.	Confirmed that judges need not be joined as respondents where no mala fides alleged.
A.G. v A Judge of the District Court [2023] IECA 311	Approval of Hall decision and joinder principles.	Reiterated that judges should not be named absent allegations of mala fides.
Ballyboden Tidy Towns Group v. An Bord Pleanala [2024] IESC 4	Obiter on Order 84, rule 22(2A) and judicial review respondents.	Confirmed judges are excluded as respondents; other parties bear burden of defense.
O'F v. O'Donnell [2010] ILRM 198	Rationale for exclusion of judges to protect judicial independence and immunity.	Emphasized proportionality and constitutional protection of judicial independence.
Heather Hill v. An Bord Pleanala [2022] 2 ILRM 313	Principles of statutory interpretation and presumption against radical amendments.	Applied to interpretation of Order 84, rule 22(2A) provisions.
Stephens v. Connellan [2002] 4 IR 321	Judicial role and independence in judicial review proceedings.	Supported the view that judges should not act as litigants defending their decisions.

Court's Reasoning and Analysis

The Court began by affirming that the judicial review application relates to proceedings before a court and that the object includes quashing an order, thereby bringing the application within the scope of Order 84, rule 22(2A) of the Rules of the Superior Courts. The Court emphasized that this rule mandates that judges whose decisions are challenged in judicial review proceedings should not be named as respondents or served unless allegations of mala fides or personal misconduct are made.

Given that the Applicant’s allegations of mala fides and misconduct against the judges were expressly rejected at the leave stage and not appealed, the Court found no exception to the non-joinder rule applied. The Court relied extensively on established jurisprudence, including the decisions in O'Connor v Carroll, O.F. v O'Donnell, M v M, and Hall v Stepstone Mortgage Funding Ltd, which collectively emphasize the importance of protecting judicial independence by excluding judges from judicial review proceedings absent serious misconduct claims.

The Court acknowledged some tension in the authorities, particularly between the Brady and M v M decisions, but preferred the reasoning in M v M as more consistent with the language and purpose of the rule and with the constitutional principle of judicial independence.

Regarding reliefs sought other than certiorari, such as declarations, damages, and costs, the Court observed that while declaratory reliefs may compel court action or quash orders, claims for damages or costs do not clearly fall within the ambit of Order 84, rule 22(2A). Nonetheless, the principle against joinder of judges absent mala fides remains applicable irrespective of the relief sought.

Consequently, the Court concluded that the Judges of the Northern Circuit were improperly joined as respondents in these proceedings. The Court exercised its power under Order 15, rule 13 of the Rules of the Superior Courts to strike out the Judges as respondents, whether on the basis of Order 84, rule 22(2A) or the broader principles safeguarding judicial independence.

The Court declined to consider the alternative relief under Order 19, rule 28 as it was not pursued by the Second Named Respondents. The Court also noted that leave had been granted only on specific grounds and that it remains the Applicant’s responsibility to ensure all necessary parties are properly included.

Finally, the Court recognized the public interest and novelty of the matter and exercised discretion not to make any order for costs, but granted liberty to apply on costs.

Holding and Implications

The Court’s final decision is to STRIKE OUT the Judges of the Northern Circuit as respondents to the judicial review proceedings on the basis that they were improperly joined in contravention of Order 84, rule 22(2A) of the Rules of the Superior Courts and established principles protecting judicial independence.

This ruling enforces the principle that judges should not be named as parties in judicial review proceedings challenging their decisions unless allegations of mala fides or personal misconduct are made and leave is granted accordingly. The decision preserves judicial independence and aligns with prior authoritative case law.

The direct effect is the removal of the Judges of the Northern Circuit from the proceedings, requiring the Applicant to consider proper joinder of parties consistent with the Court’s directions. No new precedent was established beyond the application and affirmation of existing legal principles.