Lay Litigants win Appeal in Supreme Court

Kevin Tracey and Karen Tracey, lay litigants, won their appeal in the Supreme Court on Tuesday 26 July 2016, when six plenary actions against the State and Courts Service, most in the name of Mr Tracey, were re-instated in the High Court. All six cases had been struck out by the President of the High Court on 4 March 2011 while Mr Tracey was ill. The High Court President had rejected his medical certificates as inadequate.

Kevin Tracey and his wife Karen had argued in their submission on one specific case (154/2011) that the State had engaged in egregious wrongdoing in 2000 by issuing malicious summonses to Mr Tracey for not handing in his licence and insurance certificate although he had handed both in within the allotted time. They further pleaded that he had been found guilty in his absence when he was not able to attend court on the day and, after he had paid a fine to satisfy the Court Order, the State defendants had sent three Gardaí to arrest him in his home at 7.15 a.m.on 8 May 2001. They alleged that the Gardaí had assaulted Mr Tracey by handcuffing him, knocking him to the ground and one Garda held him there by placing a booted foot on him. Only when Mrs Tracey produced the receipt for the paid fine did the Gardaí leave. Although the fine payment was eventually returned by the Courts Service Mr Tracey maintained that his name had not been cleared in their records up to May 2006. Plenary proceedings were instituted against the State and Courts Service in April 2007 and were proceeding along normal lines without any undue delay on their part, until 2 July 2010 when Kevin Tracey was suddenly stricken down with a serious illness, hospitalised for seven weeks and returned to the care of his doctor and his wife.

The State and Court defendants pursued Mr and Mrs Tracey to progress the prosecution while he was still under doctor's orders not to conduct his affairs, and while he was in the care of his wife. Their plenary action was struck out by Mr Justice NIcholas Kearns, President of the High Court, for want of prosecution and for inordinate and inexcusable delay.
Five other plenary actions against the same defendants (State and Courts Service) for separate alleged egregious wrongdoing were struck out on the same date by the same Court.

In their appeal to the Supreme Court the Traceys had alleged that the relatively short delay between July 2010 and March 2011 was neither inordinate nor inexcusable, that the defendants had not argued such delay, that even if it had been so, the balance of justice required that the proceedings should not have been struck out. They also alleged errors in law and judicial bias   which were contrary to Irish Constitutional and European law. They cited in particular Kyprianou v Cyprus on judicial bias.

The Supreme Court judgement states that "the Traceys had progressed the proceedings in a timely fashion up to [the time of Mr Tracey's illness]" that "medical reports were in fact furnished (indeed there were two) which did advance matters beyond the position which had pertained on the previous occasion when the case was put back and directions given [and] there is reference to a specific medical condition [and] there is at least a form of report from a consultant (or a consultant's registrar) ... I am satisfied that the trial judge was more than entitled to consider that the medical evidence was insufficiently detailed... It seems to me that the trial judge was entitled to conclude that there had been inordinate and inexcusable delay [because of] the persistent failure of the Traceys to present adequate medical reports to the Court" during the period 2 June 2010 and 4 March 2011.It bypassed the question of the existence of judicial bias.

However, it concluded that on the balance of justice the trial judge was in error in dismissing the proceedings and that the appeal must therefore be allowed.

The full judgement is to be found at http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/a818e973ed80e89580257ffc00541dd0?OpenDocument