The High Court has ruled that section 71 of the Courts of Justice Act 1924 can be reviewed by a court, allowing Pascal Mac Aodháin’s judicial review proceedings to continue. It did not decide whether the State breached that section or what remedy, if any, should follow.
In a judgment delivered on 30 July 2010, Mr Justice Clarke considered a State application seeking to strike out the proceedings, among other grounds, on the basis that the claim was not suitable for determination by a court. The parties agreed that the State’s application should be heard first because success could bring the proceedings to an end.
The case concerns Mac Aodháin’s claim that the Government was failing to meet its duties under section 71 in relation to District Court appointments in an area that includes a Gaeltacht district. He argued that the appointment of District Judge Zaiden did not meet the section’s requirements because Zaiden could not conduct proceedings involving evidence in Irish without an interpreter. The proceedings also raise issues about translating legal documents into Irish. These remain claims and issues for later determination, not findings made in this judgment.
Clarke J said he was not satisfied that the State had properly identified the procedural jurisdiction and criteria for bringing its application. As both sides had fully argued the matter and agreed to a decision, however, he addressed its merits. He cautioned that the judgment should not be treated as approving this type of application without reliance on established procedural authority.
On the central question, the judge considered the Supreme Court’s earlier decision in Ó Monachain v An Taoiseach. Although that decision had not conclusively resolved whether section 71 creates enforceable individual rights, he regarded it as significant support for that interpretation. He concluded that a legal duty with no person able to enforce it would be difficult to reconcile with the statute, and held that section 71 was reviewable. The question of Mac Aodháin’s personal entitlement to bring the case had not been raised, and the court did not define who might be entitled to invoke the section in other cases.
The State also argued that the case had become moot because Zaiden no longer served in District 1. The judgment noted that other judges had since succeeded Zaiden, and that the central issue could recur. It also said questions about whether the State had complied with duties concerning Irish translations, including matters raised in Ó Murchú v An Taoiseach, remained for a full hearing.
The court therefore declined to end the proceedings on the secondary points raised by the State. It directed that the relevant part of the case proceed to determination on its merits. No final ruling was made on the alleged breach of section 71 or the translation issues.