The Court of Appeal has dismissed Jerry Beades’s appeal against the striking out of his challenge to the appointment of Peter Kelly as President of the High Court. The court concluded that the Government’s nomination was an executive decision the courts could not interfere with, and that the requested orders could not be granted.
The appeal was against a High Court decision of 3 June 2016. That court struck out Beades’s proceedings under Order 19, rule 28 of the Rules of the Superior Courts and its inherent jurisdiction, finding that they disclosed no reasonable cause of action, were frivolous or vexatious, and were bound to fail as an abuse of process.
Beades’s claim concerned the Government’s 15 December 2015 nomination of Kelly, then a serving Court of Appeal judge. The President of Ireland appointed Kelly President of the High Court on 21 December 2015. Beades sought to quash the nomination and argued, among other things, that the Government had failed to consider the qualifications and suitability of serving judges as required by section 23 of the Courts and Court Officers Act 1995. He also alleged that the appointment process was unlawful and that Kelly was unsuitable. Those were Beades’s claims, not findings by the Court of Appeal.
The Court of Appeal said section 16 of the 1995 Act did not apply to the appointment of a serving judge to a court presidency. Under section 23, the Government had to have regard first to the qualifications and suitability of serving judges. The court said the Government’s nomination of a serving judge supported the conclusion that it had considered the relevant class of judges.
The court also held that the nomination was an executive decision within the Government’s remit, subject to eligibility requirements and the statutory obligation to consider serving judges. It found no basis to interfere with the decision under the separation of powers. Beades’s argument that Cabinet discussions or records should be disclosed could not overcome constitutional protection for Cabinet confidentiality; the court said disclosure could not be justified where the underlying claim could not be litigated in court.
The Court of Appeal rejected Beades’s other appeal grounds, including complaints about fair procedures in cases heard by Kelly and the use of the strike-out procedure. It said the High Court had not been asked to decide whether Kelly was suitable, and that a third party could not challenge the fairness of hearings in other people’s cases. The court also concluded that no amendment to the pleadings could make the claim legally viable. It dismissed the appeal, leaving the High Court’s strike-out in place.