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Lay Litigants Win Appeal in Supreme Court

category national | rights, freedoms and repression | news report author Wednesday July 27, 2016 23:32author by Justin Morahan Report this post to the editors

Six plenary actions returned to the High Court

Kevin and Karen Tracey won an important appeal in the Supreme Court on Tuesday

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.

Mr 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 in the required documents 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 Gardai 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 maintains 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 Mr 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 for want of prosecution and for inordinate and inexcusable delay.
Five other plenary actions against the same defendants 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 bias on the part of the High Court Judge 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 rejected the claim 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


author by Justin Morahanpublication date Thu Jul 28, 2016 10:33author address author phone Report this post to the editors

I notice that the link is not working. Apologies.

To access the judgement :

Go to Courts Service of Ireland, click on Judgements and Determinations, click on Judgements by Court, click on Supreme Court arrow, click on 2016 arrow. The judgement is under the title : "7/26/2016) Tracey -v- McDowell, The Minister for Justice Equality & Law Reform and ors"

author by wageslavepublication date Thu Jul 28, 2016 22:14author address author phone Report this post to the editors

Fixed that link in the main article for you Justin! It's now working correctly :-)

Also, here's a copy of the working link

author by Justin Morahanpublication date Fri Jul 29, 2016 15:31author address author phone Report this post to the editors

Thanks for that Wage Slave.
Here is a link to the background to the case - a Court report on the day when Judge Kearns struck out the six cases that have now been re-instated by the Supreme Court

Related Link:
author by Justin Morahanpublication date Thu Aug 04, 2016 11:12author address author phone Report this post to the editors

On re-reading the judgement, it is clear that my report was in error in saying that the Court rejected the allegation of judicial bias. What happened was that the Supreme Court judgement bypassed the allegation and merely commented unfavourably on one aspect of the Appellant's arguments alleging judicial bias, that is the description of Kevin Tracey as "a serial litigant" without any explanation

Another aspect of the allegation of bias was the rejection by the trial judge of Mr Tracey's medical certificates "in a cavalier manner". It was pointed out in Submission that the exact same certificates had been accepted without difficulty by then Judge Peter Charleton (now of the Supreme Court, who was one of the panel of three judges deciding the Supreme Court appeal.

The relevant paragraph of the judgement is 7.12, page 21-22:

"In those circumstances it is unnecessary to consider the other ground put forward on behalf of the Traceys being an allegation of bias on the part of the trial judge. I would merely comment that the mere fact that some of the issues addressed by the trial judge were expressed in a particular way would not, of itself, be sufficient evidence to indicate bias. The description of Mr Tracey as a "serial litigant", while not perhaps an ideal way of putting it, was nonetheless relevant to the point that Mr Tracey's experience of litigation allowed the Court to require a higher standard of compliance from him than might be the case in respect of a litigant who had no litigation experience whatsoever".

The judgement ignored the Case Law of Kyprianou v Cyprus cited by the Appellants in favour of their allegation of the existence of judicial bias.

author by Seán Ryanpublication date Sat Aug 06, 2016 11:23author address author phone Report this post to the editors

It's not often that you see quality like this in the Supreme Court. Usually, one sees a single point argued to death with the same argument repeated, over and over.

Not so with this case. The case started out, it seemed, with the lofty intention of bring about a resurrection. A single resurrection. About four or so hours in, one of the judges asked if Justin and Kevin were trying to resurrect a single case or six cases. Kevin replied that it was six cases that were in need of divine intervention. All six had been knocked on the head, by the same gimp, for the same gobshite reason. If one was brought back to life and the other five weren't, it would be a logical obscenity, that even an Irish judge couldn't ignore.

The barristers for Michael McDowell, the Attorney General and the Court's Service, were relegated to talking shit, irrelevant shit. They argued that "serial" when used to describe someone and their actions wasn't necessarily an insult. And they argued that not being able to provide documentary discovery didn't cause delay on their part.

The Court issued a judgement through clenched teeth. Very satisfying. Nonetheless, the Supreme Court, avoided like the plague, acknowledging the elephant in the room: The fact that the inexcusable and inordinate delay that these cases were thrown out for, had yet to happen, when they were binned. Future crime!

A massive well done to Justin and Kevin. Incredible stuff.

author by Justin Moahanpublication date Sun Feb 12, 2017 12:20author address author phone Report this post to the editors

The six cases referred to above are now under case management in the High Court with Mr Justice Eager in charge. His opinion is that 2 of the six should be decided before a judge and jury and that he himself should handle the other four.Meanwhile several other cases that had their roots in alleged egregious wrongdoing to Kevin and Karen are coming down the tube. So far the State is not admitting wrongdoing.

author by Justin Morahanpublication date Sun Feb 12, 2017 12:35author address author phone Report this post to the editors

The six cases referred to above are now under case management in the High Court with Mr Justice Eager in charge. His opinion is that 2 of the six should be decided before a judge and jury and that he himself should handle the other four.Meanwhile several other cases that had their roots in alleged egregious wrongdoing to Kevin and Karen are coming down the tube. So far the State is not admitting wrongdoing.

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