McNamee and McDonnell’s Application
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Neutral Citation | [2010] NIQB 29 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 25 February 2010 |
1
Neutral Citation No. [2010] NIQB 29 Ref:
McCL7745
Judgment: approved by the Court for handing down Delivered:
16/02/10
and
26/02/10
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
QUEEN’S BENCH DIVISION
_______
IN THE MATTER OF AN APPLICATION BY McNAMEE and McDONNELL LLP
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
________
McCLOSKEY J
I INTRODUCTION
[1] The Applicants have served Notice of Appeal against the order of this court
dated 9th December 2009 whereby leave to apply for judicial review was granted on
certain grounds and refused on others. This written judgment has been stimulated
in consequence. The question of whether a valid appeal exists is addressed at a later
stage of this judgment.
[2] The order against which the Applicants purport to appeal is the product of an
oral inter-partes leave hearing of the kind which is commonplace in this jurisdiction.
At the hearing in question, the Applicants were represented by senior counsel (Mr.
Larkin QC) and the proposed Respondent, the Chief Constable of the Police Service
of Northern Ireland (for convenience, hereinafter described as “the PSNI”)was also
represented by counsel (Mr. McGleenan). The stance adopted on behalf of the PSNI
was an entirely passive one, the reason proffered being that there was an
uncompleted police investigation related to the challenge. In the events which
ensued, neither party referred the court to any statutory provision or decided case,
reported or unreported.
II THE JUDICIAL REVIEW CHALLENGE
[3] In the Statement filed under Order 53, Rule 3 and accompanying affidavit, the
Applicants describe themselves as a firm of solicitors. The Statement formulates the
impugned PSNI decision in the following terms:
2
“A decision of the [PSNI] made on or about 27th October
2009 whereby it determined that an arrested person could
not be afforded access to a solicitor of the Applicant firm”.
As appears from paragraph 2 of the affidavit sworn by Mr. McNamee, described as
the principal in the solicitors’ firm in question, it is asserted that the impugned
decision was that a detained person was not to be afforded access to Mr. McNamee
for a purpose described as “to represent him during police interview”.
[4] On the basis of the aforementioned affidavit, it appears that the context
within which the impugned decision unfolded was stimulated by the arrest of one
Mr Creegan on 27th October 2009. He is described as a former bank manager and it
is averred that his arrest was based on a suspicion of involvement in fraud and
money laundering offences. The affidavit continues:
“Initially, I believe that he was questioned without any
solicitor … [and] later advised and assisted by Mr. Kieran
Rafferty, solicitor of Rafferty and Company …
However, later that week, there were suggestions from Mr
Creegan’s family that he had requested a solicitor from my
firm to attend upon him while he was being questioned but
that, for some reason, this had not occurred”.
There follows an averment that an unidentified member of Mr. Creegan’s family
informed the deponent that “… the police had informed Mr. Creegan that he could not
have a member of my firm as his legal adviser”. While mindful of the Civil Evidence
(Northern Ireland) Order 1997, I note, in passing, that this is triple hearsay. I would
further observe that an averment deposing to another person’s “understanding” is
not in compliance with Order 41, Rule 5 of the Rules of the Court of Judicature,
which requires that the “sources and grounds” of any deponent’s averment of
information or belief be specified. This is followed by certain double hearsay
averments, the stated sources of the information being Mr. Creegan and Mr.
Rafferty. The essence of these averments is that Mr. Creegan’s request that the
Applicants be contacted by the police to represent him was refused on the ground
that they were “deemed unsuitable” because the deponent had previously worked for
the firm of Tiernans (which is not disputed).
[5] The impetus for the initiation of these proceedings was a letter dated 3rd
November 2009 to the PSNI and the response thereto. Bearing in mind that such
letters are governed by the Protocol (infra), the language of the second paragraph of
the former letter seems a little intemperate, particularly since the correspondent was
clearly professing to be less than fully informed about the subject matter. At the
stage when the letter was written, it appears that Mr. Creegan’s legal representatives
were solicitors other than the Applicants. Notably, the letter does not advance any
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3 cases
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McNamee and McDonnell Solicitors’ Application
...them to be unsuitable. Leave to apply for judicial review was partially granted and partially refused by McCloskey J on 9 November 2009 ([2010] NIQB 29). Following an appeal against the partial refusal of leave, three further grounds were reinstated by the Court of Appeal on 25 May 2010. 2.......
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Ritchie (Eddie) v David W McComb
...adopt the approach of McCloskey J in the Matter of an application by McNamee and McDonnell LLP for leave to apply for judicial review [2010] NIQB 29. That case concerned an application for leave to appeal in relation to the refusal to grant leave to apply for judicial review as to some, but......
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Deman (Suresh) and Sunday Newspapers Limited and John Cassidy and Richard Sullivan
...is that set out by McCloskey J in In the Matter of an Application by McNamee and McDonnell LLP for leave to apply for Judicial Review [2010] NIQB 29 and followed by Stephens J in Ritchie v McComb [2014] NIQB 125, where McCloskey J stated: “[39] I would add the following observation. In case......