The High Court has refused to stay its order returning a dog destruction complaint to the District Court, finding no arguable basis for the intended appeal ground relevant to the stay application. The complaint must proceed to a fresh hearing, with the dog remaining in professionally run kennels in the meantime.
In a supplemental judgment delivered on 23 August 2023, Mr Justice Garrett Simons also ordered each party to bear its own legal costs, including the costs of the 18 August hearing. The judgment dealt with costs and the applicant’s request for a stay; it did not decide whether the dog should ultimately be destroyed.
The underlying District Court order directing destruction of the dog under section 22 of the Control of Dogs Act 1986 was set aside by certiorari. The High Court remitted the complaint for reconsideration. It directed that the applicant receive at least seven days’ notice of the fresh hearing and be entitled to attend. A production order is to issue to the prison where he is imprisoned once a hearing date is fixed. The respondent may name either Sergeant Molloy or Garda McCarthy as complainant.
The District Court may consider any admissible evidence relevant to the statutory test, including evidence of the dog’s behaviour in the kennels. It is not limited to evidence about behaviour before 21 January 2023. The District Court should list the complaint as expeditiously as possible, while observing proper administration of justice and fair procedures.
The applicant sought a stay pending the hearing and determination of an intended appeal to the Court of Appeal. His counsel identified two proposed grounds: that the High Court had misinterpreted section 22, and that it had misunderstood its power to impose a kennelling condition on remittal. Only the first ground mattered to whether the remittal should be stayed, because the applicant was not seeking the dog’s release pending appeal.
The judge concluded that the proposed challenge to allowing relevant evidence of the dog’s subsequent behaviour did not meet the low threshold of arguability. He said the District Court could consider evidence relevant to whether the dog is dangerous and whether its owner can keep it under proper control, subject to evidential rules and the applicant’s opportunity to test evidence and make submissions. The stay was refused; the Court of Appeal remains responsible for deciding any appeal on its merits.
On costs, the applicant had succeeded in setting aside the destruction order but had failed in his challenge to the terms of remittal. The judge considered that contesting those terms had caused additional hearing and submissions costs, and ordered both sides to pay their own costs.