Due Process

The constitutional obligations of fair procedures apply to civil court procedures. Court Rules and the rules of evidence, give effect to long-standing principles of fair procedures. The European Convention on Human Rights guarantees that in the determination of civil rights and obligations, persons are entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal. Subject to exceptions, judgment is to be pronounced publicly.

The Constitution does not provide the same express due process of law provisions to civil matters that apply to criminal matters. However, this is implicit in the Constitution. It is provided that justice shall be administered in courts. Basic fair civil procedures are part of the personal unenumerated rights recognised, implicitly recognised by Article 40.3 of the Constitution.

In S v S, it was stated that the combined effect of the constitutional provisions appears to guarantee something equivalent to the concept of due process under the American Constitution, in relation to causes and controversies litigated before the courts and that just as persons have a right of access to the courts which is necessary to defend or vindicate life, a person’s good name or property, so they have a constitutional entitlement to fair procedures when they get to court.

Access to Court

The right of access to court is guaranteed by the Constitution. However, there are limits in aid of a rational and manageable court system. Claims that are frivolous and vexatious may be struck out at an early stage on application, without a full hearing. Claims that have no basis may be struck out. Persons who repeatedly take unjustified claims may be subject to restrictions and require prior consent to litigation.

The courts have held in some cases that where statute places prior conditions and restrictions on access to court, it may be invalid under the Constitution. In the reference of the Illegal Immigrants (Trafficking) Bill 1999 to the Supreme Court, it was held that it was permissible to require that the challenges to deportations and refugee status applications be by judicial review on notice requiring prior leave within strict time limits.

This was  within the scope of what the Oireachtas could competent lay down and there were understandable policy reasons for ensuring that challenges in this area could be subject to screening as having a proper basis and be subjected to relatively short time limits. The 14-day time limit could be extended by the court in the appropriate case and what was accordingly not unreasonable.

In Blehein v Minister for Health, requirement in the now repealed Mental Treatment Act that proceedings for redress in respect of things done under the Act requiring the prior leave of the High Court, which will only be granted where there were substantial grounds for contending that the defendant acted in bad faith and without reasonable care, were held unconstitutional. It was legitimate to seek to protect persons acting in the mental health field against litigation.

However, because the challenges to the critical freedom, liberty of the person was involved, the restrictions were unduly arbitrary and disproportionate. Isaac Wunder orders may restrain individuals commencing multiple proceedings who have shown themselves to be repeat, vexatious litigants.

A challenge to court fees of relatively modest amounts was rejected by the Supreme Court in Murphy v Minister for Justice. They were held to be reasonable in the interest of funding, contributing towards funding of the court services.

Legal Costs

Legal costs  in Ireland are notoriously high. Legal aid is very limited. In a number of court cases, courts have ordered the State to pay the applicants costs, where matters of major public importance where involved.

In some cases, security for costs may be required. It is generally required only against companies and non-EU plaintiffs.It has been held that the requirement for security for costs in the limited cases where it applies, is compatible with the Constitution.

Security for costs is not generally available other than in the case of certain corporates and non-EU defendants. This is notwithstanding that there are many cases, where a plaintiff patently does not have the means to meet cost awards, if it is unsuccessful.

The requirement to obtain release from the Personal Injuries Assessment Board in most personal injury claims has not been adjudicated upon.

Jurisdiction of Lower Courts

It has been held that the general, original jurisdiction of the High Court does not require it to prevent lower courts which have been given jurisdiction in particular matters from exercising their jurisdiction. In  Tormey v Ireland it was held that it was permissible by law to grant exclusive jurisdiction in certain categories of cases to the  Circuit Court or High Court, provided the High Court retained its judicial review jurisdiction.

Independence of Judges

Tribunals must be independent and impartial. The basic constitutional justice requirements of independence and due process apply with extra strength and effect in the before the courts.

The Supreme Court has indicated that an objective test must be taken in respect of potential bias on the part of judges. Mere tenuous connections with the issues would not be enough. However, if there is appearance of bias, the judge should not act. Any personal, familial, financial interest may be enough to require that the judge excuse him or herself from the case.

Hearing Both Sides

In some cases, an initial order issues in proceeding on foot of an ex parte or unilateral application. On the face of it, this offends the  fundamental principle that the court should hear both sides to the proceedings. However, a unilateral application in  context can have objective justification. Thus, in cases of urgency  where prior disclosure would undermine the legitimate object of the action, the granting of orders, ex parte or unilaterally is justified.

However, courts require that where such an order was given, that it be for a very short period and that a full opportunity be given to dispute the matter, and discharge the order at an early date. In DK v Crowley, a procedure in the Domestic Violence Act which did not provide for a speedy bilateral procedure for review of a barring order, granted unilaterally was held to be  unconstitutional.

The criteria for granting the interim unilateral order, were unduly vague and while notwithstanding that the order had a severe and immediate impact. Accordingly, the legislation was found unconstitutional. In another challenge, it was held that a unilateral, ex parte application for a protection order was constitutional where there was a provision at an early return date for a determination of the matter on the merits.

Legal Aid and

The enforcement of court orders procedures was found unconstitutional in McCann v Monaghan District Judge, because, debtors could be committed once they had refused to pay a sum due on installment orders. The order could be made without legal aid in the absence of the debtor. There was no procedure to compel a debtor’s attendance to ascertain the putative basis for his absence.

The absence of civil legal aid in Ireland was found by the European Court on Human Rights to constitute a breach of Article 6.1, in the famous Airey v. Ireland case in 1979. The State adopted an ad hoc civil aid, legal aid scheme and limited legal aid scheme shortly thereafter in response to that case. The Civil Legal Aid Act 1995 placed civil legal aid on a statutory footing. However, civil legal aid remains limited in scope.

Prolonged delays in obtaining a civil legal aid certificate due to poor funding made the State liable in damages to a person affected and a declaration was made as to breach of constitutional rights in O’Donoghuev Legal aid Board. In other cases, the Legal Aid Boards were held to be acting within their powers and lawfully and was not subject to an order of mandamus.

The duty of administering justice and adjudicating by due process does not create any obligation on the State to intervene in any private civil litigation so as to ensure that one party is as well equipped for the dispute as the other. The fact that the existence of fundamental personal rights is expressly recognised by the Constitution does not impose on the State any duty to intervene in aid of a party involved in any private, civil dispute in relation to any personal rights.

In O’Brien v PIAB, the PIAB’s refusal to deal with the claimant’s solicitor was held to be a breach of his Constitutional rights, by the Supreme Court. The legislation did not authorise refusal to deal with solicitors and in view of the claimant’s constitutional rights to representation. the policy of the Board was found to be unlawful.

It was held in Law Society of Ireland v Competition Authority that a witness in proceedings does not have a right to legal representation or right of audience through its lawyers.

The European Convention on Human Rights recognised that prolonged delays may be treated as a denial of justice. Justice delayed is justice denied. Excessive delays in taking civil proceedings may be restrained in the interests of fair procedures. The Court Rules allow for the  strikeout of claims which are not being progressed.

Some proceedings have very short time limits, most notably decisions to the validity of decisions of public bodies by way of judicial review.

Statute of LImitations

The Statute of Limitations limits the periods in which civil proceedings may be commenced. The general limitation periods have been held to be constitutional. However, certain limitation periods have been held unconstitutional.

In O’Brien v Manufacturing Engineering Company, the Supreme Court upheld the challenges against the constitutionality to a time limit for bringing proceedings for under the old  Workmen’s Compensation Acts. A person who accepted compensation under the scheme could sue his employer for negligence for breach of duty causing personal injury within a reduced time limit of two years. It was held the two year period, or indeed a one year period was not unconstitutional.

The six year time limits for breach contract and ordinary tort, other than personal injury was upheld in Tuohy v Courtney. There were just and reasonable policy decisions for the time limits.

O’Brien v Keogh concerned a provision by which the ordinary time limit of three years applied in the case of an under-aged plaintiff in the custody of his parents, of either of his parents. However, in the case of children who were in the custody of neither parent, the time limit was extended until after the claimant became of full age. The Supreme Court did not accept the distinction as sufficiently justified and struck it down.

In Cahill v Sutton, a challenge to the constitutionality of a provision of the Statute of Limitations which involved a time limit that could run without knowledge of the claimant was rejected, principally on other grounds.

In Monahan and Greensmith, the two-year time limit for claims against the estate of a deceased that survived on a person’s death was held to be fair and reasonable. It was justified as being in the interest of the administration of estates.


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