Friday 24 May 2019

Honohan: Court rules are denying right to a fair trial

Master of the High Court Edmund Honohan. Photo: David Conachy
Master of the High Court Edmund Honohan. Photo: David Conachy
Shane Phelan

Shane Phelan

The Master of the High Court has said court procedures regarding fast track judgments are breaching peoples’ right to a fair trial.

Edmund Honohan hit out at the "limitations" of the summary judgment process, where a judge makes a decision based on affidavits without hearing oral evidence. He criticised the handling of such cases by High Court judges.

Mr Honohan also hit out at the manner in which he believes an ongoing review of civil justice, chaired by High Court President Peter Kelly, is being conducted.

"Designing the administration of justice is a project for the whole of society. It cannot be conducted behind closed doors," he said.

The remarks are the latest flashpoint between Mr Honohan and Mr Justice Kelly, who removed debt cases from the master’s court earlier this year.

Although not a judge, Mr Honohan is a senior counsel and has a quasi-judicial role, ensuring cases are in order before sending them on to the High Court.

In recent years much of his work has been in the area of debt cases, where he has been able to deal with applications for judgment in uncontested cases.

But following a practice direction issued by Mr Justice Kelly in January, all new motions seeking liberty to enter a final judgment in summary summons proceedings are instead being assigned to a High Court judge.

In a written decision yesterday in a case involving Bank of Ireland Mortgage Bank, Mr Honohan said current summary judgment procedures did not amount to "due process" and he suggested they could be scrapped.

He said the Supreme Court had "clearly signalled" summary judgment should only be granted where it is clear the defendant has no defence.

However, this test "is often just overlooked" by High Court judges, he said.

"Exacting standards do not bind judges, it seems," he said.

Mr Honohan comments came in a decision where he forwarded an application by the bank for final judgment of €652,428 against a woman representing herself to a plenary hearing.

The bank had sought to have the matter dealt with on a fast track basis.

But Mr Honohan said he was not prepared to breach the woman’s right to a fair trial under Article 6 of the European Convention on Human Rights by denying her a full hearing.

He said the case illustrated the limitations of summary adjudication based on affidavit evidence.

The woman claims she was "kept in the dark" about the extent of her solicitor husband’s dealing with the bank.

She claimed the bank engaged in "risky" dealings with her husband and alleged her signature was forged and fraudulently witnessed.

Mr Honohan said her affidavit included a number of "obvious errors" and bore "all the hallmarks of a lay litigant’s difficulties".

He questioned whether the prospects of such litigants should be bound by their lack of knowledge of the law.

"A few pointed questions from the bench might produce the missing pieces of a legally coherent jigsaw," he said.

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