The High Court has refused Joseph Lavery permission to bring proceedings challenging a ruling that evidence in criminal matters before Cavan Circuit Criminal Court should be given orally. It has separately allowed him to make an ex parte application seeking permission to proceed by judicial review over papers he says were returned by Cavan District Court office.
Mr Justice Barr delivered the ruling on 18 November 2021. Lavery was subject to an “Isaac Wunder” order made in 2016, which barred him from instituting High Court proceedings or issuing and serving motions without a judge’s leave. The current application sought leave for two proposed sets of proceedings.
The first proposed case aimed to stop criminal proceedings due to be heard in Cavan on 24 November 2021, including an assault charge and two appeals from District Court orders. Lavery also wanted the High Court to require the Circuit Court to accept affidavits. Judge Aylmer had ruled on 10 November that evidence in the matters would be given orally. Lavery argued that requiring oral evidence infringed his fair-trial rights.
Applying the test of whether proposed proceedings appeared frivolous or vexatious at this early stage, Mr Justice Barr found no substance in the challenge to the evidence ruling. He said criminal evidence was given orally and could be tested by cross-examination. The court held that the proposed case was frivolous and vexatious and amounted to an attempt to hinder the upcoming trial. It refused leave to institute that case.
The second proposed case concerned a notice of motion and affidavit that Lavery said he lodged at Cavan District Court office on 21 December 2020, seeking to set aside or vary an order concerning bail money. He alleged that Courts Service employee Nora Rafferty returned the papers, and sought judicial review relief including an order requiring the motion to be re-entered for hearing. He also sought an investigation into the papers’ removal and the quashing of a committal warrant related to an unpaid €100 fine.
The judgment said the stamped notice of motion and a letter from Rafferty supported the core facts as asserted by Lavery. The High Court therefore found the proposed proceedings were not frivolous or vexatious and permitted him to commence judicial review proceedings by making the necessary ex parte application in the ordinary way.
That permission was limited. Mr Justice Barr made no decision on the merits of the proposed judicial review or whether it met the threshold for permission to proceed. Those questions were left to the judge hearing the ex parte application.