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Page 1 ⇓
THE HIGH COURT
JUDICIAL REVIEW
[2020] IEHC 156
[2016 No. 228 JR]
BETWEEN
JOSEPH LAVERY
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
(NO. 5)
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of March, 2020
1. The applicant is a serial litigant and a person subject to an Isaac Wunder order. On 6th
November, 2019 by order in proceedings entitled as above [2016 No. 228 JR], Meenan J.
gave him liberty to apply for leave to issue mandamus proceedings in two separate
proposed proceedings; Lavery v. McLoughlin, Aylmer, the D.P.P and An Garda Síochána
and Lavery v. McLoughlin, such leave to be sought on notice to the proposed
respondents. That application was adjourned to 19th November, 2019 then to 10th
December, 2019, 28th January, 2020 and finally 19th March, 2020 for hearing before
Meenan J. in the judicial review list. On 26th February, 2020 separately and without
making any comprehensible reference to these developments, the applicant applied to me
ex parte for leave pursuant to the Isaac Wunder order to issue contempt proceedings
against two judges. I refused that application: Lavery v. D.P.P. (No. 4) (Unreported, High
Court, 26th February, 2020).
2. On 3rd March, 2020 the applicant attempted to apply to Meenan J. in the present
proceedings for a stay on his proposed trial in the Circuit Court on a charge of assault of a
member of An Garda Síochána, which is due to begin on 4th March, 2020. He only tried
to make that application on the afternoon of the day before the trial and even then, only
after Meenan J. had risen. Unable to make the application to the judge in charge of the
Judicial Review list, he then applied to me for such a stay. A stay in these circumstances
is not appropriate for a number of reasons:
(i). The applicant has already been directed to make the application in this case on
notice; consequently, it could only be in exceptional circumstances that one could
consider entertaining any further application ex parte.
(ii). Procedurally the matter has no connection with the proceedings in which it is made
[2016 No. 228 JR] (which proceedings, I might add, are at an end in any event).
The applicant should properly have sought a separate IA (Intended Action) record
number for each of the proposed judicial reviews and moved on that basis.
(iii). Leave to issue the application has not yet been granted, which could affect whether
a stay should be granted and certainly does so here (see the first of the Okunade v.
Page 2 ⇓
(iv). No basis has been demonstrated for such a stay in any event. No grounding
affidavit for the stay specifically has been sworn and the grounding affidavit for the
intended action discloses no arguable grounds, makes a series of ludicrous points
including that “the applicant is immune to all court orders” and “the applicant is
immune to court summonses” and complains (without, I might add, demonstrating
any legally valid basis for doing so) that the D.P.P. is in contempt of court in totally
separate and non-related proceedings in 2016 (in which Mr. Lavery does not appear
to have been involved). Even if counter-factually there was any basis shown for
some complaint in those other proceedings, that is entirely irrelevant to this
applicant and this application in particular. Mr. Lavery also submits that he is not
guilty, but that is a point of defence, not one for judicial review or stays.
(v). Even if there was a basis, counterfactually, for the present application, making it at
a late stage (in this case, on the late afternoon of the day before the trial) is
disqualifying: see per Kearns P. in Coton v. D.P.P. [2015] IEHC 302 (Unreported,
High Court, 21st May, 2015).
Order
3. Accordingly, the application for a stay is refused. If anything, the present application
further reinforces the case for my having made the Isaac Wunder order originally.
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