The High Court has allowed Joseph Lavery to issue a motion concerning the record of the Director of Public Prosecutions’ participation in one of his earlier judicial review cases, while refusing permission for proposed motions in a separate case.
In a judgment delivered on 30 April 2018, Mr Justice Richard Humphreys considered three proposed notices of motion. Lavery was subject to an Isaac Wunder order made in July 2016 and therefore needed the court’s leave to issue them.
In the case numbered 2013 No. 682 J.R., Lavery sought to set aside an order joining the DPP as a notice party and a later order dismissing the proceedings. The dismissal order had been amended to reflect the DPP’s involvement and an award of costs in her favour.
The court said Lavery had shown no basis for setting aside the joinder order, which had been made in 2014. It also described a renewed challenge to the dismissal order as an abuse of process. Lavery had previously been refused permission to seek to set aside the orders, and the Supreme Court had refused leapfrog leave to appeal. The judge said an appeal would have been the appropriate remedy. He refused leave to issue the proposed motions in that case.
A separate proposed motion concerned the 2012 No. 746 J.R. proceedings, which had been dismissed in 2013. The judgment said the Central Office system showed no order adding the DPP as a notice party. Lavery said she had participated. The perfected final order did not appear to record her participation, so the judge found a prima facie issue about whether that order might contain an error, if Lavery’s account was correct.
The judge gave Lavery liberty to issue the proposed motion in that case. He noted that the motion might result only in an amendment to the earlier order, possibly under the slip rule, rather than the order being set aside. That question, along with concerns about parts of Lavery’s supporting affidavit, was left for consideration later. The judgment did not determine whether the DPP had participated or whether the earlier order should be amended.