Where do the rules of court derive from -

pirelli · 15-11-2010 12:56am #1

Where do the rules of court derive from - Do they come from a BILL or ACT or are they made by the courts themselves. In article 34 section of the irish consitution there is a reference to the courts and it states that they
(the courts) can not question the validity of a law or any provision of the law.

So if the court is issuing an order under an ACT ( Family Act ) then would the court be allowed to break it's own court rules in the administration of that order without breaching Article 34.

i.e Serve summons in relatively serious breach of court rules.

Tom Young · 15-11-2010 2:35pm

You'll find your answer in Section 36 of the 1924 Courts of Justice Act.

The Rules of Court are binding on practitioners and people appearing in and before the Courts. They are not however the final word.

The Rules can and frequently do become the source of problems. For example where a particular rule conflicts with statute or contemporaneous process, e.g., Electronic Discovery of Documents. Which in that case was brought into being by the Rules Committee who debate and decide such matters and publish a rule recommendation which is sent to the AG for review and then transposition into being usually via Statutory Instrument e.g., http://www.attorneygeneral.ie/esi/2009/B26695.pdf ...

Where a Rule of Court is deficient the lower Courts can import the Rules of a Higher Court and where a Higher Court has no Rule or a Rule which would cause mischief to justice the inherent jurisdiction of the Court would be relied upon in the Circumstances.

I am not sure what your point is in relation to service of a summons. There are Rules for this under Order 9 and then application which can be made to service where problems have arisen under substituted service Order 10.

15-11-2010 7:00pm

pirelli wrote: »

In article 34 section of the irish consitution there is a reference to the courts and it states that they
(the courts) can not question the validity of a law or any provision of the law

This isn't just a misrepresentation of Article 34.3, it is actually factually opposite. The High Court can question the validity of any law, on constitutional grounds, UNLESS that law has the protection of an Article 26 procedure.

That's a pretty serious omission from your quote above.

pirelli · 15-11-2010 8:14pm

Tom Young wrote: »

You'll find your answer in Section 36 of the 1924 Courts of Justice Act.

The Rules of Court are binding on practitioners and people appearing in and before the Courts. They are not however the final word.

The Rules can and frequently do become the source of problems. For example where a particular rule conflicts with statute or contemporaneous process, e.g., Electronic Discovery of Documents. Which in that case was brought into being by the Rules Committee who debate and decide such matters and publish a rule recommendation which is sent to the AG for review and then transposition into being usually via Statutory Instrument e.g., http://www.attorneygeneral.ie/esi/2009/B26695.pdf ...

Where a Rule of Court is deficient the lower Courts can import the Rules of a Higher Court and where a Higher Court has no Rule or a Rule which would cause mischief to justice the inherent jurisdiction of the Court would be relied upon in the Circumstances.

I am not sure what your point is in relation to service of a summons. There are Rules for this under Order 9 and then application which can be made to service where problems have arisen under substituted service Order 10.

Thanks Tom, Your an all right guy.

I was trying legal aid. Your like a rolls royce and they are like a nissan micra in terms of valued answers. Appreciated. I am also delighted with your response as it will be of extreme importance to me.

pirelli · 15-11-2010 8:20pm

Deleted User wrote: »

This isn't just a misrepresentation of Article 34.3, it is actually factually opposite. The High Court can question the validity of any law, on constitutional grounds, UNLESS that law has the protection of an Article 26 procedure.

That's a pretty serious omission from your quote above.

If i go to the trouble of typing it up, will you eat humble pie.

15-11-2010 9:29pm

pirelli wrote: »

If i go to the trouble of typing it up, will you eat humble pie.

I'll stick the oven on so.

Here's the provision:

Bunreacht na hEireann wrote:

3. 1° The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.

2° Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.

3° No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.

4° The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.

And here is a link to a PDF version of the Constitution so you can read the whole thing.

The Courts (High and Supreme obv) can pronounce on the validity of laws and they do so in some very high profile cases.

pirelli · 15-11-2010 10:30pm

Deleted User wrote: »

I'll stick the oven on so.

Here's the provision:

And here is a link to a PDF version of the Constitution so you can read the whole thing.

The Courts (High and Supreme obv) can pronounce on the validity of laws and they do so in some very high profile cases.

No! Only article 34.3 ( nothing else )

3° No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.

What do I not understand. We are discussing family law Kayroo at an administrive level. Are court clerks supreme judges now!

Read the OP and Kayroo if you could explain about the service of summons under the family law act i.e orders and the like, I would most grateful.

pirelli · 15-11-2010 10:37pm

Tom Young wrote: »

You'll find your answer in Section 36 of the 1924 Courts of Justice Act.

The Rules of Court are binding on practitioners and people appearing in and before the Courts. They are not however the final word.

The Rules can and frequently do become the source of problems. For example where a particular rule conflicts with statute or contemporaneous process, e.g., Electronic Discovery of Documents. Which in that case was brought into being by the Rules Committee who debate and decide such matters and publish a rule recommendation which is sent to the AG for review and then transposition into being usually via Statutory Instrument e.g., http://www.attorneygeneral.ie/esi/2009/B26695.pdf ...

Where a Rule of Court is deficient the lower Courts can import the Rules of a Higher Court and where a Higher Court has no Rule or a Rule which would cause mischief to justice the inherent jurisdiction of the Court would be relied upon in the Circumstances.

I am not sure what your point is in relation to service of a summons. There are Rules for this under Order 9 and then application which can be made to service where problems have arisen under substituted service Order 10.

Can you serve a summons ( for an order ) to say a person of unsound mind or do you have to serve that summons to their guardian and is there such a rule of court and if so would it not be enshrined in the constitution?

After all orders have been issued and persons effected are still under effect of that order; would the discovery of the deliberate breaking of that rule of court be of any signifigance to the person of unsound mind.

15-11-2010 10:40pm

pirelli wrote: »

No! Only article 34.3 ( nothing else )

What do I not understand. We are discussing family law Kayroo at an administrive level. Are court clerks supreme judges now!

Read the OP and Kayroo if you could explain about the service of summons under the family law act i.e orders and the like, I would most grateful.

1. Other than you sticking the words "family act" (which Family Act? the 1995 Act?) in the OP within brackets we haven't been discussing family law, we have been loosely discussing the conflict between court rules and legislation.

What are you referring to with the court clerks comment? If I am somehow missing something I apologise but you are making absolutely no sense.

15-11-2010 10:53pm

pirelli wrote: »

Can you serve a summons ( for an order ) to say a person of unsound mind or do you have to serve that summons to their guardian and is there such a rule of court and if so would it not be enshrined in the constitution?

After all orders have been issued and persons effected are still under effect of that order; would the discovery of the deliberate breaking of that rule of court be of any signifigance to the person of unsound mind.

Order 15 r.17 allows persons of unsound mind to sue or be sued by their committee or guardian so the appropriate person to serve in those circumstances would be the committee or guardian.

I don't see why it would necessarily need to be enshrined in the Constitution.

If the summons was served unintentionally on the person under a disability themselves it would likely be corrected by the Court and appropriate allowance made although this would likely just be to order that the summons be served on the correct party and that the matter be adjourned until proper service could be effected.

pirelli · 16-11-2010 1:39am

Deleted User wrote: »

Order 15 r.17 allows persons of unsound mind to sue or be sued by their committee or guardian so the appropriate person to serve in those circumstances would be the committee or guardian.

I don't see why it would necessarily need to be enshrined in the Constitution.

If the summons was served unintentionally on the person under a disability themselves it would likely be corrected by the Court and appropriate allowance made although this would likely just be to order that the summons be served on the correct party and that the matter be adjourned until proper service could be effected.

What if that doesn't happen. What if the guardian or comittee of the person of unsound mind does not receive the civil summons. Let's say the person of unsound mind never appears in court on the day due to that error.

Then in the persons and guardians absence the court issues an order against the person of unsound mind. That order will land the person of unsound mind in prison. Then the person of unsound mind unwittingly breaks the order and the the person of unsound mind gets detained in mental asylum and prison for a year due to court connivance ( A reckless disregard to the obvious fact the person was of unsound mind and the rule of court) i.e the court detains the person in a mental asylum so it's obvious they know the person is of unsound mind and or will at some point have records confirming this. They never act to rectify the situation and leave the person of unsound mind in prison.

Is that not an abuse of article 34.3.
Hence the question where do the rules of court derive from.

If, as Tom Young states; they derive from an act of law, then clearly the summons has no power or effect, and the court can not be said to have served the summons. If the court did issue the summons in error unintentionally and the solicitor was neglient, then i assume at the point where the court discovers the person is of unsound mind; that they would rectify the situation. If they continue in conivance of the rule of court just because it's past rather than present then they should be liable for damages caused to the person of unsound mind or the eventual committee should be liable imo.

16-11-2010 10:58am

pirelli wrote: »

What if that doesn't happen. What if the guardian or comittee of the person of unsound mind does not receive the civil summons. Let's say the person of unsound mind never appears in court on the day due to that error.

Then proper service has not been effected and the matter cannot proceed. If, by some fluke of circumstance, it does proceed then the person of unsound mind, via their committee or guardian, can make the court aware of this and the original order will likely be set aside and fresh service ordered.

Pirelli wrote:

Then in the persons and guardians absence the court issues an order against the person of unsound mind. That order will land the person of unsound mind in prison. Then the person of unsound mind unwittingly breaks the order and the the person of unsound mind gets detained in mental asylum and prison for a year due to court connivance ( A reckless disregard to the obvious fact the person was of unsound mind and the rule of court) i.e the court detains the person in a mental asylum so it's obvious they know the person is of unsound mind and or will at some point have records confirming this. They never act to rectify the situation and leave the person of unsound mind in prison.

Yeah. This would never happen. For so so many reasons. For a start you earlier referred to a civil summons. In order to be put in jail for failure to comply with a Court order you have to show willful disobedience of that order. Pretty hard to willful disobey an order you were never aware of.

If the matter was a criminal offence then the person of unsound mind or their representatives would likely have been served with the court summons personally or, in the alternative, a bench warrant would be issued and the criminal offence would only be heard once they had been brought before the court. In either case your scenario would not arise.

Pirelli wrote:

Is that not an abuse of article 34.3.
Hence the question where do the rules of court derive from.

No. Article 34.3 is about the full original jurisdiction of the High Court and the power of the High and Supreme Court to test the validity of any law except those laws that have been referred to the Supreme Court and found to be constitutionally sound under the procedure of Article 26.

In no way is the service of a summons a violation of that provision of Art. 34.3 of the Constitution. In fact I cannot think of any scenario whatsoever where a summons could be challenged under that provision.

Pirelli wrote:

If, as Tom Young states; they derive from an act of law, then clearly the summons has no power or effect, and the court can not be said to have served the summons. If the court did issue the summons in error unintentionally and the solicitor was neglient, then i assume at the point where the court discovers the person is of unsound mind; that they would rectify the situation. If they continue in conivance of the rule of court just because it's past rather than present then they should be liable for damages caused to the person of unsound mind or the eventual committee should be liable imo.

The Rules do derive from an Act of Law. How does it follow then that they have no power or effect? The summons would be lawfully issued under the Rules and, if there was a defect, it could be corrected, amended or set aside under those rules.

There would be no cause for damages under those circumstances.

pirelli · 16-11-2010 4:57pm

Deleted User wrote: »

Then proper service has not been effected and the matter cannot proceed. If, by some fluke of circumstance, it does proceed then the person of unsound mind, via their committee or guardian, can make the court aware of this and the original order will likely be set aside and fresh service ordered.

No. Article 34.3 is about the full original jurisdiction of the High Court and the power of the High and Supreme Court to test the validity of any law except those laws that have been referred to the Supreme Court and found to be constitutionally sound under the procedure of Article 26.

In no way is the service of a summons a violation of that provision of Art. 34.3 of the Constitution. In fact I cannot think of any scenario whatsoever where a summons could be challenged under that provision.

Could then a breach of court rule by a court not be challenged by art 34.3. You have to seee it in laymans terms. The court and judge knew the person was of unsound mind and yet proceeded knowingly and with a disregard to the persons constitutional rights.
They would have had to set aside the order and strike out any criminal charges arising from the first order and re issue a new summons to the Guardian. To not do this and Knowingly break the rule of court is wrong and whether it be Article 34.3 or not it is still wrong. I am sure article 34.3 comes into play somehow.

Yeah. This would never happen. For so so many reasons. For a start you earlier referred to a civil summons. In order to be put in jail for failure to comply with a Court order you have to show willful disobedience of that order. Pretty hard to willful disobey an order you were never aware of.

If the matter was a criminal offence then the person of unsound mind or their representatives would likely have been served with the court summons personally or, in the alternative, a bench warrant would be issued and the criminal offence would only be heard once they had been brought before the court. In either case your scenario would not arise.

Ok if this would never happen then the court rules would never be broken. However the court rule in this instance has been broken and therefore What your saying would never happen did happen. So the person of unsound mind was brought to court by the garda and then sent to jail. The person fell between the cracks so to speak.

Their guardian was reckless and neglient and did not care. So lets imagine a new committee and guardian discovers this dark and secretive comittee/ guardian were reckless and cruel and wants to help the person of unsound mind .. then what.

The Rules do derive from an Act of Law. How does it follow then that they have no power or effect? The summons would be lawfully issued under the Rules and, if there was a defect, it could be corrected, amended or set aside under those rules.

There would be no cause for damages under those circumstances

Those are not the circumstances. If the rules derive from an Act of law then a bad civil summons under these circumstances is no good. Any order would be violate the persons constitutional rights. As the person was of unsound mind they can not challenge it so it just remains in violation.

We are at loggerheads here. If the courts want to question the validity of the law they must use (for example ) article 26 and the supreme court . They can not use a person of unsound mind as test of that law. Do you not get that Kayoo. Otherwise they must adhere to existing court rules.

If the state health board was the guardian and while not served a summons they would of eventually discovered the mistake and failed to take action. The court clearly knew the person was of unsound mind. They are both liable IMO.

The new guardian and commitee should sue on behalf of the person of unsound mind for damages.Vindicate the person of unsound mind and make sure it doesn't happen again.

16-11-2010 8:05pm

pirelli wrote: »

Could then a breach of court rule by a court not be challenged by art 34.3. You have to seee it in laymans terms. The court and judge knew the person was of unsound mind and yet proceeded knowingly and with a disregard to the persons constitutional rights.
They would have had to set aside the order and strike out any criminal charges arising from the first order and re issue a new summons to the Guardian. To not do this and Knowingly break the rule of court is wrong and whether it be Article 34.3 or not it is still wrong. I am sure article 34.3 comes into play somehow.

Article 34.3 doesn't come into play. You are wrong about that. I am not trying to be rude or dismissive but you are wrong.

The Court would not proceed against someone of unsound mind without a guardian or committee in place. If they did the decision could be appealed. Constitutional issues do not arise in my opinion.

pirelli wrote: »

Ok if this would never happen then the court rules would never be broken.However the court rule in this instance has been broken and therefore What your saying would never happen did happen. So the person of unsound mind was brought to court by the garda and then sent to jail. The person fell between the cracks so to speak.

Obviously I do not know what you are referring to in specific terms. However, what you are saying seems to fall into 1 of 2 categories. Either:

1. The person was of unsound mind and was convicted notwithstanding their committee or guardian was not notified/did not respond/was negligent in their handling of the matter, or;

2. The person was declared insane by a criminal court and placed into the appropriate mental facility.

The latter does not require a committee or guardian. The former would be easily resolved on appeal.

Pirelli wrote:

Their guardian was reckless and neglient and did not care. So lets imagine a new committee and guardian discovers this dark and secretive comittee/ guardian were reckless and cruel and wants to help the person of unsound mind .. then what.

Habeus Corpus application and move to have the original committal order struck out and a new committee or guardian appointed.

Pirelli wrote:

Those are not the circumstances. If the rules derive from an Act of law then a bad civil summons under these circumstances is no good. Any order would be violate the persons constitutional rights. As the person was of unsound mind they can not challenge it so it just remains in violation.

A bad "civil summons" (and by that I take it to mean one that does not comply with the rules) would be no good under any circumstances. It doesn't matter that the rules derive from an Act.

If the Court acted outside its power then yes, it is possible that is a violation of constitutional rights but absent specifics I seriously doubt this happened in the manner you described. There must be a deficit of understanding between us in what you or I take to mean as a person of unsound mind, "civil summons" or the nature of the court rules.

Pirelli wrote:

We are at loggerheads here. If the courts want to question the validity of the law they must use (for example ) article 26 and the supreme court . They can not use a person of unsound mind as test of that law. Do you not get that Kayoo. Otherwise they must adhere to existing court rules.

This is all wrong. The Courts cannot use Article 26. The President is the only person who can utilise the Art.26 procedure. She refers the Bill to the Courts and they test it.

Art 34.3.2 gives the High and Supreme Court power to test the validity of any law OTHER THAN those laws that have already been referred to the Supreme Court by Art 26 and which have been deemed constitutional.

If a person of unsound mind wants to challenge a law they are perfectly entitled to do so as long as they have locus standi to do so.

Pirelli wrote:

If the state health board was the guardian and while not served a summons they would of eventually discovered the mistake and failed to take action. The court clearly knew the person was of unsound mind. They are both liable IMO.

The new guardian and commitee should sue on behalf of the person of unsound mind for damages.Vindicate the person of unsound mind and make sure it doesn't happen again.

Your opinion is not the law. What the court did or did not know is completely outside my ability to comment upon considering this seems to have segued from an abstract conversation to a discussion of a specific case involving facts that only you are privy to.

If the HSE was a notice party and they failed in a fiduciary duty to a person of unsound mind under their supervision then the person may have a cause of action but there is far too little information in what you have occasionally alluded to for anyone to comment on that matter.

Reloc8 · 17-11-2010 2:53pm

I'm going to go off on a flyer here and say that none of what follows Tom's initial (and accurate) reply will ever see the light of day outside of this forum.

pirelli · 17-11-2010 3:42pm

Deleted User wrote: »

Article 34.3 doesn't come into play. You are wrong about that. I am not trying to be rude or dismissive but you are wrong.

The Court would not proceed against someone of unsound mind without a guardian or committee in place. If they did the decision could be appealed. Constitutional issues do not arise in my opinion.

Obviously I do not know what you are referring to in specific terms. However, what you are saying seems to fall into 1 of 2 categories. Either:

1. The person was of unsound mind and was convicted notwithstanding their committee or guardian was not notified/did not respond/was negligent in their handling of the matter, or;

2. The person was declared insane by a criminal court and placed into the appropriate mental facility.

.

I do not wish to argue with you Kayroo. I am not scholared in the rules court, quite the contrary to be honest. That is why I asked. As for that specific case, I am using it as a good working example. Thanks for your contribution.

If you feel that article 34.3 of the constitution is not relevant from our abstract conversation then so be it. As you have said there are may be other constitutional avenues. I am more than pleased that the court rules are based on an Act of law.

pirelli · 17-11-2010 3:45pm

Reloc8 wrote: »

I'm going to go off on a flyer here and say that none of what follows Tom's initial (and accurate) reply will ever see the light of day outside of this forum.

I am going to swat your fly.

And If Tom's initial reply is as accurate as you claim and then you might just be a mischief to justice reloc. An annoying buzzing fly that some sound judge will swat some day.

Reloc8 · 17-11-2010 3:58pm

pirelli wrote: »

I am going to swat your fly.

In some strange internet way (query - is the word 'strange' redundant here) this almost seems like a threat :rolleyes:

pirelli wrote: »

And If Tom's initial reply is as accurate as you claim and then you might just be a mischief to justice reloc. An annoying buzzing fly that some sound judge will swat some day.

I don't know what a mischief to justice is in this context although I don't doubt that you tried your best to express whatever it is you believed yourself to be thinking.

I wasn't intending to annoy you at all. Sure you are well set now on foot of the replies given to go and litigate the backside off whatever point you think you have in your favour. The soundness of judges is never in doubt.

pirelli · 17-11-2010 5:23pm

Reloc8 wrote: »

I wasn't intending to annoy you at all. Sure you are well set now on foot of the replies given to go and litigate the backside off whatever point you think you have in your favour.
.

hyp·o·crite/ˈhipəˌkrit/
Noun: A person who indulges in hypocrisy

Whats your point, that your a hypocrite and that Kayroo's ideas won't work and my query about the rules of court are preemptive of a massive litigation battle to help bring some poor soul back to the light of day.

And I suppose you will be laughing hoping the poor soul stays locked away in some dark pit.

So what ever it is your still a very naughty mischief and that's being polite.

Reloc8 · 17-11-2010 7:13pm

pirelli wrote: »

So what ever it is your still a very naughty mischief and that's being polite.

Well I never claimed to be the messiah :P

pirelli · 18-11-2010 12:23pm

Reloc8 wrote: »

Well I never claimed to be the messiah :P

You also never claimed to be the President of Ireland.

Where do the rules of court derive from -

Comments