The High Court refused a judicial review application challenging decisions made by an Assistant Examiner in proceedings over the sale of land in Cork. Mr Justice McGovern held that the Assistant Examiner acted within his powers when settling sale conditions and the sale date, and rejected the applicants’ challenges concerning the exclusion of counsel and the absence of written reasons.
The applicants were Rockrohan Estate Limited and Richard Wood. The bank had obtained a well charging order and order for sale against the company in 1987. The order charged £1 million Irish pounds, with interest, on the company’s land in County Cork and provided for the court to settle the sale conditions. It also directed accounts and inquiries into encumbrances and priorities.
The applicants received leave to seek judicial review in October 2006. They argued that the Assistant Examiner had exceeded his authority by setting sale conditions and a date, that excluding their counsel from a hearing breached fair-hearing rights under Article 6 of the European Convention on Human Rights, and that the Assistant Examiner acted unlawfully by not giving reasons.
The judge accepted evidence that settling conditions and arranging the time and place of sale had long been part of the Examiner’s office practice. He concluded that the Assistant Examiner’s actions followed that practice and were consistent with the 1987 order. He rejected the claim that the Assistant Examiner had acted ultra vires.
On counsel’s exclusion, the judge noted that the applicants were represented by a solicitor. Rules of the Superior Courts provided that counsel could not appear before the Examiner unless the court directed otherwise. The applicants had not sought such a direction or asked the High Court to consider a matter arising before the Examiner under another rule. The judge rejected their Article 6 challenge and their claim that the rule was incompatible with the Convention.
The court also rejected the complaint about reasons. The applicants had not identified a particular decision or shown resulting prejudice, and could have brought a dispute before the High Court while the Examiner’s proceedings remained ongoing.
The judge said the applicants had given a distorted account of the delay in enforcing the sale order, citing the history of litigation challenging the bank’s entitlement. He stated that this alone would justify refusing discretionary relief. He then refused all relief sought. The judgment did not determine whether the land would ultimately be sold or set a sale date itself.