Supreme Court allows appeal dismissing abuse of process claim where constitutional challenge raised in new charges.

THE SUPREME COURT

Murray C.J.

Fennelly J.

Kearns J.

[157/2005]

BETWEEN

STEPHEN MITCHELL

PLAINTIFF/APPELLANT

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered the 28th day of March, 2007

This is an appeal from the order and judgment of the High Court (Hanna J.) delivered on 18th March, 2005, whereby it was ordered

that the plaintiff’s claim herein should stand dismissed on the grounds that the same was an abuse of process. A motion seeking such

relief was brought on behalf of the defendants on 8th February, 2005, just one week prior to the scheduled hearing of the

proceedings which had been initiated by the plaintiff on 30th May, 2003. In those proceedings the plaintiff had claimed, inter alia, a

declaration that s. 62 of the Offences against the Person Act 1861 was unconstitutional and therefore null and void. If the plaintiff

was successful in those plenary proceedings, some 31 offences contrary to s. 62 of the Offences Against the Person Act 1861

alleging sexual abuse of various complainants by the plaintiff between 1963 - 1976 could not have proceeded further.

Background

The plaintiff at all material times was a Christian Brother and teacher at St. Joseph’s Residential School at Salthill in Galway between

August, 1967 and August, 1974. Between March, 1995 and January, 1996, six former pupils of the school made complaints to An

Garda Síochána alleging that they had been sexually abused by the plaintiff during periods between 1963 and 1976. A garda

investigation commenced and statements were taken from the six complainants. The plaintiff was interviewed on two occasions in

1996 and denied the allegations. A warrant for his arrest was issued on 16th July, 1997 and executed on 8th September, 1997. On 1st

October, 1997, the plaintiff was charged with 25 offences of indecent assault under s. 62 of the Offences against the Person Act

1861. Thereafter he was remanded on bail and has remained on bail ever since.

A book of evidence was served in November, 1997. In February, 1999 the plaintiff was charged with eight further offences concerning

different complainants, though the charges related to more or less the same period. Those latter complainants had made their

allegations in June and July 1997. A second book of evidence in respect of those charges was served on 3rd February, 1999. All of the

charges, 33 in total, including 31 involving offences under s. 62 of the Act of 1861, were consolidated and became the subject of one

return for trial dated 28th February, 2000.

However, prior to the consolidation and the return for trial, the plaintiff obtained leave to apply for judicial review against the Director

of Public Prosecutions on 16th February, 1998. This application sought to restrain any trial on the grounds of delay. That application,

which related only to the first tranche of charges, was heard by McGuinness J., who refused the application on 20th December, 1999.

There then followed various requests for disclosure, applications for third party discovery and applications to transfer the case from

Galway to Dublin.

On 30th May, 2003, the plaintiff instituted, by way of plenary summons, the proceedings herein. In these proceedings he seeks, by

way of declaratory relief, a declaration that the provisions of s. 62 of the Act of 1861 are inconsistent with the Constitution. He

further seeks consequential relief by way of injunction restraining the prosecution of the offences of indecent assault that have been

laid against him under that section.

A statement of claim was delivered on 4th September, 2003. A defence thereto was delivered on 26th November, 2003. On or about

11th December, 2003, the plaintiff changed his solicitors and a notice of change of solicitors was served. Following the introduction of

the European Convention on Human Rights Act 2003, an amended statement of claim was delivered on 19th November, 2004 and an

amended defence thereto was delivered on the same date.

That defence – in both its original and amended form – failed to raise any point or objection to the effect that the proceedings

constituted an abuse of process.

The matter was listed before Finnegan P. on 15th November, 2004 at which point counsel for the defendants indicated to the learned

President that the case was ready for hearing and that there were no outstanding issues. No mention or reference was made to any

objection to the proceedings on grounds of abuse of process. The learned President fixed 15th February, 2005 as the date for the

hearing of the plenary proceedings. However, on 8th February, 2005, the defendants brought the motion, the subject matter of this

appeal, seeking to dismiss the plenary proceedings on the basis that the same were an abuse of process. The return date for the

hearing of the motion was the same date as that fixed for the full hearing but the trial judge elected to deal with the motion as a

preliminary issue and, following a two day hearing, gave a reserved judgment on the issue on 18th March, 2005.

The Judgment

In the course of the judgment, the learned trial judge rejected a contention raised by the plaintiff to the effect that the defendants

were estopped from raising the issue of abuse of process by reason of their own delay. He then proceeded to deal with the question

whether it would have been possible to litigate the constitutional issue raised in the proceedings within the framework of the judicial

review proceedings which had been heard and determined by McGuinness J. in the High Court in 1999. While the learned High Court

judge acknowledged that a “stand alone” challenge to the constitutionality of any statute should be brought by way of plenary

action, he noted that the reason why the issue raised in the present proceedings was not ventilated in the earlier judicial review

proceedings was for the simple reason that the point had not occurred to the plaintiff’s then lawyers. He took the view that as the

issue of constitutionality would clearly have been regarded as one of two attacks upon the prosecution of the criminal charges, it was

an issue which could properly have been accommodated within the framework of the Judicial Review proceedings.

Dealing with the question of abuse of process itself, he considered the origin of the rule in Henderson v. Henderson (1843) 3 Hare 100

as approved in this jurisdiction in Carroll & Anor v. Ryan & ors, Carroll v. The Law Society of Ireland [2003] 1 I.R. 309 wherein

Hardiman J., at p.317 referred to the rule in the following terms:-

“There is a well established rule of law whereby a litigant may not make the same contention, in legal proceedings which

might have been but was not brought forward in previous litigation.”

The learned trial High Court judge referred to a number of other decisions which had affirmed the existence of the rule and discussed

its application, referring in particular to the decision of this Court in A. A. v. The Medical Council and the Attorney General [2003] 4

I.R. 302. He concluded that, in the circumstances of the instant case, the plaintiff was estopped by omission from proceeding with his

constitutional claim, holding that:-

“This is clearly an issue which could reasonably have been brought forward before. It is in the interests of the plaintiff,

the complainants and, the defendants and the public generally that the criminal charges be processed with the minimum

of delay having regard to the fact that the charges relate to a period of time so long ago. As it is, more than six years

have elapsed since the commencement of the judicial review proceedings. At all material times, the plaintiff has been

legally represented and has had the benefit of what was and is, no doubt, the highest standard of legal advice. Nothing

new has emerged nor has there been any alteration in the plaintiff’s circumstances …The only new factor to emerge is

that a fresh legal point has occurred to the plaintiff’s present legal representatives. In my view, that point could properly

and sensibly have been raised in the earlier proceedings.”

Finally, the learned trial judge considered the plaintiff’s contention that the existence or bringing of the second tranche of charges,

which were not the subject matter of the judicial review, effectively precluded the operation of the rule in Henderson v. Henderson.

The learned trial judge held they did not have this effect, since, as he put it:-

“It is inconceivable that the later charges would have been proceeded with had the plaintiff succeeded in his earlier

proceedings.”

The Appeal

Following judgment the plaintiff issued a notice of appeal to this Court on 19th April, 2005, essentially raising four grounds of appeal

as follows:-

1) The defendants’ delay in raising the issue of abuse of process until after the allotment of a special date for hearing the

substantive constitutional issue should have disentitled them from raising this point.

2) The learned High Court judge erred in holding that the constitutional issue could have been raised in the earlier judicial

review proceedings, when it could only have been raised in separate plenary proceedings.

3) The learned High Court judge erred in holding that the later eight charges, which were not the subject of the earlier

judicial review proceedings, could not conceivably have been proceeded with had the plaintiff succeeded in the judicial

review proceedings, and the rule in Henderson should not have applied to those later charges, since no issue in respect of

them had ever been litigated previously by the plaintiff.

4) The learned High Court judge erred in applying the rule in Henderson in too rigid and inflexible a manner, without due

regard to the circumstances of the case and the explanation offered for failing to raise the issue in the earlier judicial

review.

Preliminary matters

It is perhaps desirable, firstly, to identify the constitutional issue raised in the plenary proceedings. In those proceedings the plaintiff

contends that s. 62 of the Offences Against the Person Act 1861 (as amended and operational at the time of the offences alleged

against him) is in breach inter alia of Article 40.1 of the Constitution, amounting to unjustifiable inequality before the law, as it

imposes a maximum sentence of ten years imprisonment for indecent assault on a male person, that being a sentence five times

greater than the maximum two year sentence for a first conviction of indecent assault on a female, as provided for by s. 6 of the

Criminal Law Amendment Act 1935. The plaintiff contends that this is a manifest discrimination on gender grounds which is

presumptively unconstitutional. Further declaratory relief is sought by the plaintiff on similar grounds under the European Convention

on Human Rights Act 2003.

Secondly, the defendants have conceded that the plaintiffs claim in those plenary proceedings is neither frivolous nor vexatious nor

one which must necessarily fail. The learned trial judge himself concluded that the constitutional issue, had it occurred to the

plaintiff’s then legal advisers, would obviously have been “germane”.

Thirdly, this Court was informed at the outset of the hearing by Mr. Coffey, S.C., counsel for the defendants, that, although no order

prohibiting the trial of the plaintiff had been made, the Director of Public Prosecutions had nonetheless on grounds of prudence,

decided not to proceed with same until the present application had been disposed of.

Fourthly, counsel for the defendants acknowledged that his sole point in relation to the abuse of process issue was that the

constitutional issue which was the subject matter of the plenary proceedings should either have been raised in the earlier judicial

review proceedings or in parallel plenary proceedings initiated at the time of those judicial review proceedings. He contended that the

failure on the part of the plaintiff to do either of those things should properly lead the court to conclude, as the learned High Court

judge had done, that the plenary proceedings, which sought, as he put it, to “unhorse” the Director in maintaining the prosecution

should, for that reason, be seen as an abuse of process.

Decision

The first point to be considered is whether the defendants’ delay in raising the issue of abuse of process until after the allocation of a

special date for hearing the substantive constitutional issue should disentitle them from relief.

The court’s power to dismiss proceedings which constitute an abuse of process of the court is an inherent power of the court and it

is, strictly speaking, correct to say that there is no time limit within which the issue of abuse of process must be raised or dealt with.

This inherent power complements the jurisdiction given by O., 19, r. 28 RSC 1986, to strike out pleadings which disclose “no

reasonable cause of action or answer” or pleadings which are “frivolous or vexatious”.

In citing the High Court’s inherent jurisdiction to so deal with proceedings which it perceives to be an abuse of process, the learned

trial judge relied on the dicta of Costello J. in Barry v. Buckley [1981] I.R. 306 at p. 308:-

“Basically its [the High Court’s] jurisdiction exists to ensure that an abuse of the process of the Courts does not take

place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the

plaintiff's claim must fail; per Buckley L.J. in Goodson v. Grierson at p. 765. ”

The defendants accept that the issue raised by the plaintiff is neither frivolous or vexatious, and indeed the fact that the Director of

Public Prosecutions decided not to proceed with the trial pending a resolution of the matter may be seen as an implicit recognition

that the issue was not devoid of some substance.

However, the defendants’ contention is that the issue should have been raised in the earlier judicial review proceedings. The plaintiff

for his part contends that the defendant should be denied relief on the motion to dismiss because of delay in bringing same. It is

appropriate to first deal with the latter contention.

In computing delay, time commenced to run from the date of issue of the plaintiff’s plenary summons on 30th May, 2003. All

defendants had entered appearances by October, 2003. The defence was filed on 26 November, 2003. It raised no issue or complaint

of abuse of process. When the pleadings were amended late in 2004, the amended defence dated 19th November, 2004 again raised

no issue of abuse of process. Accordingly, when the defendants made application on 15th November, 2004 to Finnegan P. for an early

date for the plenary hearing of the constitutional challenge, indicating to the court that the matter was ready for hearing, it appeared

there were then no outstanding issues. The 15th February, 2005 was fixed as the date for the plenary hearing on this basis. As

previously noted, the motion seeking an order to dismiss the plaintiffs claim on grounds of abuse of process was issued on 8th

February, 2005, just one week before the hearing date. In the course of his judgment, Hanna J. noted the “undoubtedly significant

delay in raising the issue of abuse of process”. The learned trial judge went further and stated that in his view it was desirable that

an issue of this nature be dealt with at the earliest reasonable stage in the proceedings, rather than “let matters trundle onwards

with inevitable time and costs implications”. This Court would emphatically support that view, not least because the raising of a

constitutional issue about a particular statutory provision may have widespread implications far beyond the individual case itself. If

the State’s case had been based on the delay by the plaintiff in raising the constitutional issue, in circumstances where there was

the background of the judicial review, and where the State raised the point about the plaintiff’s delay in timely fashion, the plaintiff

might have faced a major obstacle in this case.

The defendants have not sought to explain or justify the delay on their part or offer reasons for the last minute nature of the motion

to dismiss. However, the learned trial judge concluded that once a potential abuse of process had been raised, albeit at a very late

stage, it was incumbent upon the court to assess the situation and that any delay in bringing an alleged abuse to the attention of

the court should not weigh heavily, or at all, with the court. I respectfully disagree. In Johnson v. Gore Wood & Co. [2002] 2 AC 1,

Lord Bingham of Cornhill at p. 34 characterised delay to move an application to dismiss as having the following implications:-

“… failure to take action to strike out over a long period of time is potent evidence not only that the action was not seen

as abusive at the time but also that, on the facts, it was not abusive. The indicia of true abuse are not so obscure that

an experienced professional party … will fail to recognise them.”

In the instant case there was a delay of almost two years from the inception of plenary proceedings to the bringing of the motion.

The motion has all the hallmarks of an afterthought, or of an application brought more in hope than expectation, given that the

suggested abuse of process had never even been hinted at, still less raised in correspondence or pleadings, prior to February, 2005. I

would be of the view that the plaintiff is entitled to succeed in the appeal on this particular ground alone, particularly when no case is

made that the issue raised is either frivolous or vexatious.

The plaintiff further contends that in any event it would not have been possible to accommodate the constitutional challenge within

the earlier judicial review proceedings. In this regard the plaintiff relies on the decision of this Court in Riordan v. An Taoiseach (No. 2)

[1999] 4 I.R. 343 and the dicta of Barrington J. at pp 350 and 351 where he said as follows:-

“This Court accepts that the system of judicial review referred to in O. 84 of the Rules of the Superior Courts, 1986, is a

very useful jurisdiction. It recognises also that an application for judicial review commencing with an attack on a particular

order or administrative decision, may, as the proceedings unfold, raise constitutional issues and develop into an attack on

a particular Act of the Oireachtas. Clearly the issue ought to be disposed of in the quickest way possible and the quickest

way to do this may be to decide it in the judicial review proceedings, see the comments of Walsh J. in The State (Lynch)

v. Cooney [1982] I.R. 337 at page 373. No rigid rule should be laid down on the matter. But when the primary relief

claimed by an applicant for judicial review is the validity of an Act or the repugnancy of a Bill, having regard to the

Constitution, this Court considers that the case is not an appropriate one for judicial review, and that the applicant ought

to be left to claim relief, if any, in a plenary action.”

Although the Court in that case did in fact consider the constitutional issues raised in the case notwithstanding that the plaintiff had

proceeded otherwise than by way of plenary summons, it is by now well established that a statutory provision should only be

challenged on grounds of unconstitutionality in judicial review proceedings if there is an underlying administrative or judicial decision

which is being attacked. One can then ‘tack on’ a challenge to the validity of particular legislation. However, in the present case the

plaintiff has not been convicted or sentenced under the impugned provision. The only issue dealt with in the judicial review

proceedings was the issue of delay and that in turn was concerned only with the first tranche of charges.

The defendants counter these arguments by contending that, even if the inclusion of the constitutional claim had been contrary to

established procedure, a set of parallel plenary proceedings could have been initiated by the plaintiff and brought concurrently with

the judicial review proceedings.

However, the immediate difficulty which arises in respect of this otherwise meritorious contention is that parallel constitutional

proceedings would not have encompassed the second tranche of eight charges alleging indecent assault on two different males on

dates between January, 1961 and 1973 in respect of which no judicial review proceedings were ever brought.

Had the plaintiff succeeded in the judicial review proceedings in relation to the first set of charges, he still would have faced the

charges contained in the second book of evidence and would either have had to bring further judicial review proceedings in relation to

those eight charges and/or brought the present plenary constitutional action in relation to those eight charges. In fact, no legal

proceedings whatsoever have ever been brought in relation to those eight charges.

The learned trial judge dealt with this point by finding:-

“It is inconceivable that the later charges would have been proceeded with had the plaintiff succeeded in his earlier

proceedings.”

However, the learned trial judge did not elaborate or explain on what basis it was inconceivable that the later charges would have

been proceeded with had the plaintiff succeeded in the judicial review proceedings on the grounds of delay. It seems to me that the

learned trial judge may well have had in mind that, had the plaintiff brought a successful constitutional challenge in relation to the

charges in the first book of evidence, it would then be inconceivable that the Director of Public Prosecutions could have proceeded

with the charges in the second book of evidence on the basis of the condemned provision. However, that is an entirely different

matter as the plaintiff has never heretofore litigated the substantive constitutional point, and while the later charges are for offences

under the same statutory provision, they relate to eight distinct and separate offences against two distinct and separate

complainants on distinct dates. I would therefore be of the view that they comprise a wholly distinct and separate set of

circumstances and that there can be no basis for holding that, had a judicial review in relation to the first Book of Evidence been

successful that the Director of Public Prosecutions would not then have proceeded with the prosecution of the later offences

contained in the second book of evidence.

Ultimately, the key issue in the case is to consider whether the order granting dismissal of the plaintiff’s claim for abuse of process is

justified by application the rule in Henderson v. Henderson [1843] 3 Hare 100.

As already noted, the rule in Henderson v. Henderson effectively means that a litigant may not make a case in legal proceedings

which might have been but was not brought forward in previous litigation. In that case Wigram V. C. formulated that principle as

follows at pp 114 and 115:-

“In trying this question, I believe I state the rule of the Court correctly, when I say, that where a given matter becomes

the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that

litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to

open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject

in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even

accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon

which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point

which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have

brought forward at the time.”

The purpose of the rule is to uphold an important principle of public policy which demands, in the interests of justice, that defendants

are not exposed to successive suits where one would do. In Woodhouse v. Consigna [2002] 1 W.L.R. 2558, Brooke L. J. characterised

the public interest requirement in the following manner at p. 2575:-

“…at least as important is the general need, in the interests of justice, to protect the respondents to successive

applications in such circumstances from oppression. The rationale for the rule in Henderson v Henderson (1843) 3 Hare

100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all

aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based on the desirability, in the

general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a

defendant should not be oppressed by successive suits where one would do …”

These principles have been adopted and approved on a repeated basis in this jurisdiction over many years. (Russell v. Waterford and

Limerick Railway Company (1885) 16 L.R. I.R. 314; Cox v. Dublin City Distillery (No. 2) [1915] 1 IR 345; Carroll v. Ryan [2003] 1 I.R.

309; A. A. v. The Medical Council and the Attorney General [2003] 4 I.R. 302; Sohail Akram v. Minister for Justice and others [2004]

1 I.R. 452).

However, it is equally clear on the authorities that the rule in Henderson v. Henderson must not be applied in a rigid or mechanical

manner so as to deprive the court of any discretion to hold otherwise in an appropriate case.

Recognising this requirement for a degree of flexibility, Hardiman J. stated as follows in A. A. v. The Medical Council and the Attorney

General [2003] 4 I.R. 302, at p. 317:-

“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it

appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of

it is exercising his right of access to the courts for the determination of his civil rights or liabilities. This point has a

particular resonance in terms of article[sic] 6 of the European Convention on Human Rights and Fundamental Freedoms

1950. In Ashingdane v. United Kingdom (1985) 7 E.H.R.R. 528 at p. 546, the European Court of Human Rights said:-

“the right of access to the courts is not absolute but may be subject to limitations; these are permitted by

implication since the right of access, ‘by its very nature calls for regulation by the State, regulation which may vary

in time and place according to the needs and resources of the community and of individuals’.”

It follows therefore that a limitation such as that provided for by the rule in Henderson v. Henderson should not be blindly or invariably

applied, particularly where there are special circumstances in the case which would suggest that the imposition of the limitation would

be either unfair, excessive or disproportionate. Thus in Landers v. Director of Public Prosecutions [2004] 2 I.R. 363 the rule in

Henderson v. Henderson was not applied in circumstances where the applicant, who had been charged with road traffic offences,

brought judicial review proceedings in which an order was granted restraining the District Court judge from further conducting the trial

of the applicant. No order was sought prohibiting the prosecution of the applicant and, on being informed that the charges against

him would be heard before another District Court judge, the applicant issued fresh judicial review proceedings seeking an order to

restrain the respondent from further prosecuting him. The respondent contended that the applicant was not entitled to prohibition by

reason of his failure to seek it in the first set of judicial review proceedings, but this contention was rejected on the basis that the

applicant and his advisors could not reasonably have anticipated that the Director of Public Prosecutions would seek to prosecute

afresh having regard to existing jurisprudence in relation to an unconstitutional first hearing in the District Court.

In the case of A. A. v Medical Council [2003] 4 I.R. 302 no reason was ever advanced as to why the point ultimately taken (i.e., the

absence of legal aid) had not been raised in the earlier proceedings. There had been no change of circumstances in the intervening

period insofar as the applicant was concerned. The applicant’s financial position had not worsened in the interval: he was impecunious

at all material times.

The requirement to adopt a flexible approach was stressed in Johnson v. Gore Wood and Co. [2002] 2 A.C. 1 in which Lord Bingham of

Cornhill stated at p. 31:-

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court

is satisfied(the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier

proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify

any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements

are present the later proceedings will be much more obviously abuse, and there will rarely be a finding of abuse unless the

later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that

because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in

later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a

broad, merits-based judgment which takes account of the public and private interests involved and also takes account of

all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing

or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

It seems to me that in the instant case the defendants have failed to put forward any evidence or reasoning to support a case of

abuse or misuse of process based on any collateral attack of a decision made in the prior judicial review proceedings. In A. A v The

Medical Council [2003] 4 I.R. 302 , the legal aid argument was ancillary to the challenge which had previously been brought in the first

judicial review and could not therefore be raised in a second judicial review. In addition, a key feature of the alleged abuse in that

case was that the applicants unexplained delay had lead to the disciplinary tribunal being forced to abort its hearing at the last

minute, causing, according to Hardiman J., at p. 319:-

“ inescapable distress to the lay witnesses, especially those giving evidence of an intimate nature …”

The current plenary proceedings, by contrast raise a discrete constitutional point which could not “sensibly” have been raised as part

of the judicial review proceedings. An explanation, albeit not the most meritorious, has been offered as to why the point was not

adverted to at an earlier time. However, that does not lead inexorably to a conclusion that the raising of the constitutional issue at a

later time was an abuse of process. Nor can the present proceedings be characterised as dishonest or tantamount to the unjust

harassment of any party. The defendants themselves have merely contended that the plaintiff could have raised his constitutional

point either in the judicial review or in parallel plenary proceedings brought at the same time.

Unlike the A.A. case, there were changed circumstances operating in the plaintiff’s case, because eight additional charges involving

different complainants were added to those which were the subject matter of the judicial review. There has been no litigation of any

sort to date in relation to the second tranche of charges.

Secondly, the parties to the present proceedings are not the same, given that the Director of Public Prosecutions was the opposing

party in the judicial review proceedings but is not a party to the plenary proceedings. Furthermore, the plaintiff is not here seeking to

reopen the same subject of litigation. He is not seeking to challenge a related procedural defect which might, and which should have

been argued in the context of his delay type judicial review in 1998. What the plaintiff seeks to achieve in the present proceedings is

a discrete and distinct subject of litigation, namely, that of seeking to have the statutory sentencing regime as set out in s. 62 of the

Offences Against the Persons Act 1861 declared unconstitutional. The dicta of Barrington J in Riordan v An Taoiseach(No. 2) [1999] 4

I.R. 343 make it clear that this was not a relief to be appropriately claimed in the judicial review proceedings.

Finally, any case on the ‘parallel proceedings’ argument seems to me to have the fatal flaw that such proceedings could not address

charges not yet in being at the time of the judicial review proceedings and in respect of which no legal proceedings were ever

brought. In another case, however, that argument might well prove conclusive in favour of a defendant.

For all these reasons, but also because of the delay in bringing the motion to dismiss, I would allow the appeal.