‘A Typical Act Of Trying To Destroy The Messenger’

at

Last night.

In the Dáil.

Fianna Fáil TD John McGuinness raised last week’s announcement that debt cases are being removed from the  Master of the High Court Edmund Honohan, under a direction  by the President of the High Court Peter Kelly, while addressing the Minister for Finance Paschal Donohoe.

Mr McGuinness was speaking during the second reading of Sinn Féin’s No Consent, No Sale Bill which provides that lenders/banks may not transfer/sell mortgages on residential properties to a vulture fund without the consent of the borrower.

Mr Honohan wrote the Affordable Housing and Fair Mortgage Bill which was introduced to the Dail last year by Mr McGuinness.

Last night, Mr McGuinness said:

“Another arm of the State, the courts. Now I understand fully the separation of powers and I take all that but I have to say that the last port of call for thousands of families over the last number of years was the Master’s court – where he checked the paperwork from banks, and indeed from borrowers, and where he forced the banks to correct the paperwork, or to acknowledge that their paperwork wasn’t adequate enough to press the charge against the individual before the court.

“Most of these individuals, lay litigants by the way. And having done that and having done this state a hell of a service and has stood by – fair to the banks, fair to the borrowers, creating a level playing field, he has now been removed from that task by the President of the High Court.

“And I would say it’s an absolute scandal.

“I was astonished last week to learn the newspaper, media, knew it before he did.

And then, to try and compound the problem for the master, there’s certain comments made by other judges and put out into the public domain to discredit him.

“A typical act of trying to destroy the messenger.”

The Ceann Comhairle asked Mr McGuinness to “refrain from criticising the judiciary” and Mr McGuinness continued:

“I’ll refrain now, having condemned them completely for the carry-on of them down in the Four Courts and for the manner in which they treated that individual. It was absolutely incredible to read the reports of it.

The individuals that appeared there in courts, that was their last port of call, now that that’s gone. So the only thing they can do is turn to this House for further assistance No Consent, No Sale, and I would say to this House that that is the road we need to go.

“We need to offer full protection for the individuals who are trying their best to make a deal, to get out of the problems that they have – similar what we did for the banks, exactly the same thing.

“We bailed them out, we put them back in business.

“And let me tell you now Minister, that they are now beginning to treat business people, borrowers and those that are in distress in the same disgraceful manner that had treated them before.

“It didn’t take them long to get back on their feet, to begin to turn around then and treat people in the way that we did not expect. And I encourage you Minister to please examine this Bill.

If you’re not going to support it, give us an alternative, give us an alternative and tell the Central Bank they also have a job to look after the consumer in this case, that they’re not doing.”

Watch back in full here

28 thoughts on “‘A Typical Act Of Trying To Destroy The Messenger’

  1. Eoin

    Mark Tighe said in the Sunday Times last week that the removal of financial judgement cases will reduce Edmund’s workload by 70%. Has Edmund been constructively dismissed?

    1. The Old Boy

      Some of my learned colleagues in Dublin have suggested as much. The post of Master used to be a sought-after semi-sinecure for lazy old politically connected hacks, mind you.

        1. The Old Boy

          He was appointed by the FF/PD government in 2001. Several names went forward from what was described at the time as the first competitive interview process for the role. Honohan had been a ministerial adviser to Minister for Economic Development Martin O’Donoghue (FF) in the late 70s.

    2. b

      should leave him loads of time to run for elected office or join the judiciary – he seems to covet both those roles

  2. Trueblueterry

    It beggars belief that, firstly, you have a sitting member of the Legislature criticising the Judiciary and, secondly, that he seems unaware of the Master’s role in proceedings.

    The Master is certainly never last port of call in any action.

  3. Conall

    Old Boy

    Any views on Bewildered Devil’s query here regarding legality of the Practice Direction’s amendment to Ord.37 RSC.

    https://www.broadsheet.ie/2019/01/25/removing-ed/

    More discussion of the issue between yours truly and learned colleagues Actio and Trueblueterry in comments section here:-

    https://www.broadsheet.ie/2019/01/28/eds-shearing/

    Imvho the change clearly takes away the master’s jurisdicition Ord 37 (albeit a jurisdiction narrowly defined by Hogan J in a recent case) and therefore should have been an amendment to the Rules rather than a Practice Direction.

    The general power of Kelly J to organise the business of the HC cannot prevail over the specific provision in the Courts Acts that the rules can only be altered or removed by the Rules Committee of the Superior Courts with the concurrence of the Minister. Generalia specialibus non derogant!

    1. The Old Boy

      The President of the High Court does not have a general power to make unilateral changes to the RSC. He does, however, have a statutory power by way of primary legislation under the Courts (Supplemental Provisions) Act, 1961, S10(3) to “arrange the distribution and allocation of the business of the High Court.”

      The question is then, does the President of the High Court have capacity to issue a practice direction in apparent conflict with the RSC provided that the conflict is solely in relation to the distribution and allocation of the business of the High Court?

      Unsatisfactory as it may seem, I’m quite sure the answer to this is yes. Because the RSC operates as secondary legislation, the position is that where it sets out channels through which the business of the Courts are sent, these are defaults rather than binding rules and remain subject to the President of the HC’s prerogative outlined above.

      Your point about the Courts Act overriding Kelly P’s general power is reasonable but legally misconceived. There would have to be a much clearer conflict in primary legislation to curtail the President of the HC’s general jurisdiction in the way that you describe.

      1. Conall

        What could be clearer than a statutory provision saying the Rules can only be altered by the Superior Court Rules Committee? Seriously. Really wondering about the smarts of the legal profession here.

        1. The Old Boy

          The President’s case management powers are inherent and creatures of primary statute. They are also very limited – this just happens to fall within the scope.

          The RSC is secondary legislation and subordinate to the President’s case management powers.

          You may not like the result – I don’t, for what it’s worth – but interpreting conflicting legal provisions is rarely as straightforward as you might like to think.

          1. Conall

            But there is a competing statutory provision!

            Section 38 of the Courts of Justice Act 1924 specifically states that the Rules can only (I emphasise the use of the word only) be altered by a specific procedure not followed in this case.

            The question of how far a general provision in a statute goes is determined by that well known principle of statutory interpretation known as generalibus specialia non derogate. Section 36, being more specific, limits the operation of the general right of case management in section 10(3) to case management which does not conflict with provisions in the Rules.

      2. Actio Non Accrevit

        Section 38, Courts Act 1924

        Rules of court shall be made or annulled or altered only with the concurrence of a majority of a committee consisting of the judges of the Supreme Court and the High Court, the President of the Incorporated Law Society of Ireland, and two practising barristers, of the senior and junior Bar respectively, to be selected by the Council of the Bar of Ireland (subsequently amended to substitute the Superior Courts Rules Committee).

        Order 37 Rules of the Superior Courts Rule 1

        Every summary summons indorsed with a claim (other than for an account) under Order 2 to which an appearance has been entered shalll be set down before the Master by the plaintiff, on motion for liberty to enter final judgement for the amount claimed, together with interest (if any), or for recovery of land, with or without rent or mesne profits (as the case may be) and costs, and, in the case of an action for the recovery of land for non-payment of rent, to ascertain the amount of rent due. Such motion shall be for the first available day, as the Master may fix, not being less than four clear days from the service thereof upon the defendant, and shall be supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action. A copy of any such affidavit shall be served with the notice of motion.

        The practice direction amends Order 37 Rule 1 and hence the Rules and should have been done by the SCRules Committee and by SI just like every other amendment to the Rules.

        1. Actio Non Accrevit

          These are the members of the Superior Court Rules Committee (the composition of which was amended by Section 67 of the Courts of Justice Act 1936.) They are the only ones who can alter the Rules, and they can only do so with the concurrence of the Minister for Justice.

          The Chief Justice, the Hon. Mr. Justice Frank Clarke (Chairperson)
          The President of the Court of Appeal, the Hon. Mr. Justice Sean Ryan (Vice Chairperson)
          The President of the High Court, the Hon. Mr. Justice Peter Kelly
          The Hon. Mr. Justice William McKechnie, Judge of the Supreme Court
          The Hon. Ms. Justice Elizabeth Dunne, Judge of the Supreme Court
          The Hon. Ms. Justice Mary Finlay Geoghegan, Judge of the Court of Appeal
          The Hon. Mr. Justice Michael Peart, Judge of the Court of Appeal
          The Hon. Mr. Justice Anthony Barr, Judge of the High Court
          The Hon. Ms. Justice Deirdre Murphy, Judge of the High Court
          The Master of the High Court, Mr Edmund W. Honohan S.C.
          Mr. Conor Dignam S.C., nominated by the Council of the Bar of Ireland
          Ms. Grainne Larkin B.L., nominated by the Council of the Bar of Ireland
          Mr. Stuart Gilhooly, Solicitor, nominated by the Council of the Law Society of Ireland
          Mr. Michael Kavanagh, Solicitor, nominated by the Council of the Law Society of Ireland
          Mr. Noel Rubotham, Director of Reform and Development, Courts Service, to whom membership has been delegated by the Chief Executive Officer of the Courts Service
          under Section 30(2) of the Courts Service Act 1998 3
          Ms. Mary Cummins, Office of the Chief State Solicitor – appointed to act in place of the Attorney General under Section 36(4) of the Courts and Court Officers Act 2002 4
          Mr. John Mahon, Registrar of the Supreme Court

          Why are they not complaining about the Rules being altered by the President without their approval? Is it not part of the responsibility of their role to object if the rules are altered other than by them? A provision that summary summonses shall no longer be set down before the Master is not a mere complement to order 37 rule 1 – it is a contradiction of its mandatory provisions and should only have been done by the Committee with the concurrence of the Minister.

          The President has unwittingly acted in breach of statute (the 1924 Act) and statutory instrument (15/86 – the Rules). In so doing he has breached the separation of powers. The idea that this cannot be raised in the Dail because to do so would breach the same separation of powers is hilarious. Furthermore, as we all know, the Master is not a judge. He is a civil servant and by substantially altering his duties other than in accordance with law the President has strayed into the province of the executive.

          The whole issue of Practice Directions and the remit of the President’s powers need to be looked at by the Rules Committee. I shall be disappointed if the Master as a member of the Committee does not raise it at the next meeting. In fact the other members of the Committee and the Minister for Justice (whose concurrence to amend the Rules has effectively been abrogated) should be asking the President to explain this now.

          BTW I totally accept that the Master is bound by the decisions of the High Court re. his jurisdiction in relation to striking out summary and special summonses, unless and until these are overturned by the Court of Appeal. However the Practice Direction, which regrettably was referred to in yesterday’s decision of Simons J, without its validity being properly considered, is not the solution.

        2. The Old Boy

          He shouldn’t have done it, but as a matter of construction, he is within his powers. The RSC can’t deprive the President of his inherent case management jurisdiction. If anything, it could be argued that the RSC, a statutory instrument, cannot validly assume a power of the President granted under primary legislation.

          1. Actio Non Accrevit

            Taken to its logical conclusion, your argument would mean that the President, as part of what you call his ‘case management jurisdiction’ would be entitled for instance to abolish summary and special summonses altogether, to merge plenary summonses and statements of claim and to make whatever other amendment to the rules vaguely falls within the area of ‘case management’. That is rubbish.

            As I comment on another post, the matter has been considered in the UK, where it has been clearly stated that Practice Directions should supplement rather than alter the Rules.

            A general power is always interpreted so as not to conflict with another, more specific, statutory power. A general power of case management cannot be interpreted to permit alterations to the Rules where another statutory provision provides in the most specific terms that another body shall be the ‘only’ body with power to alter the Rules.

            If Order 37 Rule 1 said ‘may’ instead of shall I would have no difficulty with the general power of case management being used to remove summary summonses from the jurisdiction of the Master. This would be supplementing and not altering the Rules. Unfortunately Order 37 Rule 1 uses the mandatory expression ‘shall’ in relation to these matters going before the Master. It follows that removing these matters from his jurisdiction requires alteration of the Rules (I cannot believe I am even having to explain this, it is so obvious).

            The fact is that unless some better justification can be found for what is not a mere supplement to, but a direct alteration, of Order 37 of the Rules, the PD was outside jurisdiction, and more than that, unconstitutional (since it represented a unilateral judicial attempt to alter a statutory instrument where there was no power to do so).

            The Master’s jurisdiction under Order 37 has already comprehensively discussed by Kearns P in Bank of Ireland v. Dunne [2013] IEHC 484 and Hogan J in ACC Bank PLC v. Heffernan [2013] IEHC 557; [2013] 2 I.R. 790 and at no point is it suggested that it can be removed without altering the Rules under the proper procedure.

            I should add further that the Rules require Ministerial concurrence for their alteration – so there is a significant judicial/executive conflict issue at play here. The approach of altering the Rules by Practice Direction impacts on the solicitors’ profession, the civil service and the bar (all of whom have representatives on the Superior Court Rules Committee for this reason). Are these representatives considering the question of whether or not their position has been abrogated? Should they be?

            Despite loyal defence of the President (a superb lawyer, usually) by commenters on this site, the Practice Direction steps into a hornets’ nest legally. It will be very interesting to see how this pans out.

    1. b

      what nonsense

      Loans are assets and sold all the time.

      If this was in any way true and against the terms of conditions of the mortgage contract, someone would have won a case on it in the court and/or you would have others trying to enact legislation to prevent it

  4. Louis Lefronde

    I thought the whole point of the Separation of Powers was each institution was to act as a check and balance on the other.

    There seems to be an issue here, as they say in Football, The player (Kelly) is offside..

Comments are closed.