Monday, 28 March 2011

High Court Judge rejects Medical Certificates for Ill Lay Litigant

 The following report was first published on Indymedia Ireland

High Court Judge Rejects Medical Certificates For Ill Lay Litigant as Inadequate

SUMMARY: If the State, in the name of the Irish people, prosecutes you wrongfully or maliciously, and the State loses, you can sue for damages. When you are good and ready to go ahead, the State can send you a letter ordering you to appear in another court where they will ask another judge to strike out your case. The reasons given are usually that your case is "vexatious" or "unlikely to succeed". Or if you fall ill and under doctor's orders, the reason could be "for want of prosecution".
Kevin Tracey's six cases were struck out by the President of the High Court on 4 March last. His doctor's and hospital consultant's certificates were deemed by the Judge to be inadequate. He is allowed to "appeal" to the Supreme Court but as a lay litigant who is still under doctor's orders, the odds are stacked against him to carry through or win such an appeal.

"Even a Man on his Death Bed Would be Able to Write an Affidavit", said President of High Court

In Dublin's Four Courts, on Friday 4th March 2011, a lay litigant, Kevin Tracey, had six of the cases he was taking against the State and Courts Service struck out for want of prosecution by him while he was ill and unable to attend court. The cases taken by Kevin Tracey were related to ten prosecutions of himself by the State. The State had lost all cases except for one which it had withdrawn on the morning on which the case was due to be heard after numerous witnesses from the Courts Service had been sub-poenaed. Kevin Tracey contends that all of the prosecutions are malicious.

On foot of the results of these different and separate cases (which the State had lost or withdrawn) Kevin Tracey had been engaged in suing the State and others for malicious prosecution of him. However, he was suddenly struck down by illness in July 2010 after which he was hospitalized for several weeks. He has been attempting to recuperate since then and remains under doctor's medical care and advice.

The sudden illness and its aftermath prevented him from attending court or engaging in the work of prosecuting any of the six cases. He was hoping to have all six cases heard by a Judge and jury. The courts were kept informed by his wife of his inability to attend because of his continuing illness and the fact that he was under doctor's orders. Hospital and GP certificates were provided to the Court.

The GP's first certificate, dated 2 September 2010, stated that Kevin Tracey would not be able to conduct his affairs for a period of six months.

In the Four Courts, on Friday 4th March, 2011, Justin Morahan, a human rights activist, handed Judge Nicholas Kearns the most recent certificate from Kevin Tracey's GP, dated 23 February 2011. This certificate stated, after outlining his medical condition, that Kevin Tracey would be unable to work or attend court for the next six months.

On Friday 4 March 2011, the State and the Courts Service asked that all of the cases be struck out for want of prosecution basing their case on a Motion and an Affidavit written by Niall O'Shea of the State Solicitors office. They said that there had been an inexcusable and inordinate delay and they had suffered prejudice. The Courts Service contended that court clerk Bernard Neary who was among those being sued by Kevin Tracey, had forgotten the incidents about which he was being sued.

Judge Nicholas Kearns allowed Justin Morahan to make a verbal submission. Justin Morahan said that he had come to court only to explain Kevin Tracey's absence and to hand in his doctor's certificate that had been requested by the Judge. He said that he had no legal training and he was up against eminent barristers and solicitors. He asked that the motion of the State and Courts Service be struck out, so that Kevin Tracey could prosecute his cases when he was in better health. These were cases where the State and its agents had engaged in the most serious wrongdoing against Kevin Tracey. Justin Morahan said that Kevin Tracey, even in the words of the State Solicitor's Affidavit, had "advanced the litigation in an expedient and determined manner" until July 2010, - and that was the exact date of Kevin Tracey's sudden illness and hospitalisation.

It would be a very grave and serious miscarriage of justice, Justin Morahan said, if a man's inability to come to court - an inability vouched for by his GP and Hospital Consultant - were to allow the State and Courts Service to have these prosecutions against them for their own serious wrongdoing struck out before they could be heard by a judge and jury.

The Judge remarked that he would not be accepting Kevin Tracey's Doctor's certificate as adequate.

When Judge Kearns then began to give his verbal judgement, Justin Morahan interjected to say that he had an important point of information that he wished to supply to the court before judgement was entered. Some weeks ago, while Kevin Tracey's first certificate was still valid and Kevin Tracey was unable to attend court, Judge Kearns had proceeded, in Kevin Tracey's absence, to deal with two other of his cases, struck out one of them, and removed the second one from the jury to the non-jury list. These decisions of Judge Kearns were now being appealed to the Supreme Court and as a result, on Kevin Tracey's behalf, he was asking Judge Kearns to recuse himself from this case.

Mr Justice Kearns refused this request.

The President of the High Court, Mr Justice Kearns, in his judgement, rejected the GP's medical report. He said that he had heard nothing to convince him that the delay was not inexcusable and inordinate. Some of the defendants had even forgotten the events. Kevin Tracey should have replied to the State Solicitor's (Niall O'Shea's) recent Affidavit. Even a man on his death bed would be able to write an Affidavit, he said.

The Court, he said, had previously made a specific regulation that a detailed medical report from an appropriate expert was needed by the Court if these cases were to be adjourned again and this regulation had not been met in the certificates handed into the court.

He granted the motion of the State and Courts Service and accordingly struck out all of Kevin Tracey's cases against them

Immediately after the judgement, Justin Morahan asked Mr Justice Kearns as a point of clarification who he (Judge Kearns) would regard as an appropriate medical expert. The Judge replied that he was not used to having the clarity of his judgements questioned but again said that the medical report he had been given did not meet the required standards.

He awarded costs to both the State and the Courts Service. He said that Kevin Tracey had the right of appeal to the Supreme Court.


Before the case was heard, during the first call, Justin Morahan handed the original copy of the doctor's certificate to Mr Justice Kearns, telling him that, as it was the original copy. Kevin Tracey would need to get it back, as he would need it for other purposes and he (Justin Morahan) would supply the Judge with a copy that he could compare with he original.The detailed information about Kevin Tracey's health that was contained in the certificate was private and confidential. He then gave copies to the representatives of the State and Courts Service after they requested them.

However when Mr Justice Kearns proceeded to read out the contents of the certificate and had succeeded in reading the first ailment mentioned there, Justin Morahan intervened to prevent him from reading the certificate in open court There were press representatives present and Kevin Tracey did not wish his medical condition to become public knowledge, he said.This information was private and confidential. Mr Justice Kearns said that the only reporters present were Court reporters and they could be relied on to keep the information confidential. Justin Morahan said that he thought that he had already pointed out to the Court that the detailed information was private and confidential and Kevin Tracey did not wish to have this information relayed in open court. When Mr Justice Kearns said he had to inform the representatives of the State and Courts Service about the information in the certificate Justin Morahan told him that he had already given them their copies.

In the event, no other part of the medical report was read out by Judge Kearns.


As of today, Kevin Tracey remains ill and under his doctor's orders not to engage in litigation until his health improves.

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