The High Court has proposed to set aside permission for a judicial review challenge after finding that the applicant’s account of the family law hearing at its centre was grossly misleading.
Mr Justice Garrett Simons said on 6 March 2023 that the judicial review proceedings amounted to an abuse of process. He proposed to set aside the grant of leave and dismiss the proceedings. The judgment gives a provisional view that the respondent should recover the costs of the judicial review, but leaves that issue open to further written submissions.
The judicial review challenged only the Circuit Court’s direction that the applicant pay €3,265 in maintenance arrears. The applicant alleged that the Circuit Court relied on material that was not properly before it, refused a request by his counsel to cross-examine the respondent, and prevented him from presenting evidence. The respondent applied to set aside the High Court’s grant of leave, arguing in part that material facts had not been disclosed when leave was sought without notice.
The High Court said the Circuit Court transcript and affidavits contradicted key parts of the applicant’s account. The respondent had given sworn oral evidence confirming the arrears, the court said; the claim that counsel had sought to cross-examine her was untrue; and she had filed three affidavits in the family law appeal. One affidavit addressed the maintenance arrears.
The judgment also noted that the family law case had been listed more than 40 times and involved multiple interim orders. Although the judicial review did not plead a challenge to the separate costs order, the judge considered that issue in case the grounds were read broadly. He said a legal costs accountant’s report had been circulated to the applicant months before the Circuit Court hearing and was before that court. The Circuit Court set the respondent’s legal costs at €140,720 and directed the applicant to pay half, €70,360; the High Court said the judge had applied a 50% discount to the accountant’s estimate.
The judge rejected the objection that the applicant needed the Circuit Court’s permission to bring judicial review proceedings. He said the Circuit Court could not restrict access to the High Court’s supervisory jurisdiction. The judgment did not determine whether the Circuit Court had an independent power to restrict proceedings in lower courts.
The proposed dismissal was based on the court’s conclusion that the case, as pleaded, did not meet the threshold for leave. The applicant had not filed an affidavit responding to the set-aside application. On costs, he may file written submissions within 14 days of the judgment; the respondent may reply within 14 days after that.