The High Court has ordered a District Court judge to reconsider in public an application for a summons against John Kelly, after finding that the application had been heard in chambers without a legal basis for doing so.
Mr Justice Richard Humphreys made the order on 18 March 2016 in judicial review proceedings brought by Eugene Cafferky. The application before the High Court was treated as both the leave hearing and the substantive hearing under Order 84, rule 24(2) of the Rules of the Superior Courts, after the respondent and the State indicated they would not oppose the relief.
The summons application arose from a long-running dispute concerning an intoxicating liquor licence for Creaton’s Bar in Loughglynn, Co Roscommon. Cafferky had alleged that evidence given in 2004 about the licence was inaccurate. Kelly later swore an affidavit in related judicial review proceedings stating that the evidence was not inaccurate. Those earlier proceedings were dismissed by the High Court in 2008 and the Supreme Court in 2015.
In November 2015, Cafferky asked Judge Kevin Kilraine at Carrick-on-Shannon District Court to issue a summons so he could pursue proposed criminal proceedings as a common informer against Kelly over the affidavit. Cafferky said he was taken to the judge’s chambers, asked to take an oath and questioned before the application was refused. No formal order had been drawn up at the time of the High Court hearing.
Cafferky challenged the refusal on two grounds: that the summons had not been signed and that the application had not been heard in open court. The High Court rejected the first ground as a challenge to the merits of the decision rather than its legality. On the second, Mr Justice Humphreys said issuing a summons in this context involved a judicial function, which should in principle be exercised in public unless a legal exception applied. None had been identified.
The court required the District Court clerk to prepare or produce a record of Judge Kilraine’s refusal, issued certiorari to remove that order for quashing, and remitted the application to Judge Kilraine for fresh consideration in accordance with the judgment.
The ruling did not determine whether a summons should issue or whether the allegation against Kelly had merit. The judge noted concerns including delay, the lack of satisfactory evidence supporting the allegation and its denial by Kelly, but said those matters did not displace the entitlement to have the judicial application determined in public.