Grimes v Cork Circuit Court Judge & Anor (Approved)

Factual and Procedural Background

The judgment arises from an application by the Respondent to set aside an order granting the Applicant leave to apply for judicial review on the basis of material non-disclosure. The underlying proceedings stem from criminal proceedings in which, on 17 May 2018, the Applicant was convicted of certain revenue offences following a guilty plea and was sentenced to a suspended prison term subject to conditions. The Respondent considered that the Applicant breached these conditions and issued a motion to re-enter the proceedings pursuant to section 99 of the Criminal Justice Act, 2006. The Applicant initiated judicial review proceedings in June 2022 seeking, inter alia, to quash the motion to re-enter. Leave to apply for judicial review was granted on an ex parte basis on 27 June 2022, but no stay was imposed on the Circuit Criminal Court proceedings, which have been adjourned pending resolution of the judicial review, delaying the re-entry motion for nearly three years.

The ex parte application was supported by an affidavit from the Applicant, who was a litigant in person, challenging aspects of the notice of re-entry and asserting that the Circuit Criminal Court lacked jurisdiction due to ongoing proceedings before the High Court and Court of Appeal. The Applicant admitted his affidavit was below his usual standard due to ill health. The Respondent subsequently sought to set aside the grant of leave, alleging material non-disclosure, including failure to disclose prior judicial review proceedings and contentious issues concerning a lease relied upon by the Applicant.

The Respondent’s motion to set aside the grant of leave has experienced multiple delays, often attributed to the Applicant’s ill health. The Court eventually directed that the motion be heard on the papers and afforded the Applicant a final opportunity to file written submissions, which he did not do. The matter proceeded to adjudication on the basis of the available documentation.

Legal Issues Presented

1. Whether the Applicant’s failure to disclose material facts in an ex parte application for leave to apply for judicial review constituted a material non-disclosure sufficient to set aside the grant of leave.
2. Whether the judicial review proceedings ought to have been permitted to proceed given the existence and disposition of prior related proceedings and the Applicant’s legal representation in the underlying criminal matter.

Arguments of the Parties

Respondent's Arguments

• The Applicant failed to disclose that the suspended sentence resulted from a guilty plea with legal representation.
• The Applicant agreed to the conditions of his suspended sentence but breached them.
• The Applicant had previously initiated judicial review proceedings in 2019 seeking to quash his conviction and sentence but withdrew that application, which was not disclosed in the current application.
• The Applicant exhibited a lease in support of his case without disclosing that a materially different lease relating to the same premises had been challenged and discredited in prior proceedings.
• The Applicant falsely suggested ignorance of the appointment of receivers over the premises despite evidence of his involvement with the receivers’ representatives.
• The Applicant was legally represented in the Circuit Criminal Court and there was no basis to suggest he would not receive a fair trial.
• The Applicant’s ex parte application was selective and misleading, omitting relevant facts that would have influenced the Court’s decision to grant leave.

Applicant's Arguments

• The Applicant challenged the notice of re-entry and asserted the Circuit Criminal Court lacked jurisdiction due to ongoing superior court proceedings.
• The Applicant relied on a lease to claim entitlement to certain premises, asserting he was not trespassing.
• The Applicant referred to ill health affecting his ability to properly prepare and present his application and affidavits.
• The Applicant did not provide any written submissions in response to the Respondent’s motion to set aside the grant of leave.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the principle that ex parte applications for leave to apply for judicial review require the applicant to act with utmost good faith by disclosing all relevant factual and legal matters, even those that may not support the grant of leave. The Court cited authoritative texts and precedent to establish that material non-disclosure in such applications undermines the integrity of the judicial review process and justifies setting aside the grant of leave.

The Court evaluated the Respondent’s allegations of non-disclosure, finding that the Applicant omitted key facts including prior judicial review proceedings that had been withdrawn, the Applicant’s legal representation in the underlying criminal proceedings, and the contentious nature of a lease relied upon in the judicial review. The Court found that the Applicant’s assertions regarding the jurisdiction of the Circuit Criminal Court were misleading given the absence of live proceedings in the superior courts.

The Court noted the Applicant’s failure to provide written submissions or adequately respond to the Respondent’s contentions despite multiple opportunities. The Court also found the medical evidence submitted by the Applicant insufficient to justify repeated delays or non-participation.

Considering the totality of the circumstances, the Court concluded that the material non-disclosure was significant and that the grant of leave was improperly obtained. The Court emphasized the presumption that the Applicant would receive a fair trial in the Circuit Criminal Court, where the issues could be properly contested with legal representation.

Holding and Implications

The Court SET ASIDE the grant of leave to apply for judicial review previously given to the Applicant on 27 June 2022.

This decision means that the Applicant’s judicial review proceedings challenging the re-entry motion are dismissed at this stage due to material non-disclosure in the ex parte application. The underlying criminal proceedings in the Circuit Criminal Court may proceed without the interlocutory impediment caused by the judicial review. The Court’s ruling does not establish new precedent but reinforces established principles regarding the duty of full disclosure in ex parte judicial review applications. The Respondent is provisionally entitled to costs, with further submissions on costs to be heard at a later date.