Refusal of stay in wardship proceedings could potentially amount to constitutionally impermissible denial of access to the court

Whelan J (nem diss): Appeal of a decision of the President of the High Court refusing to grant an adjournment of a wardship inquiry in relation to the appellant - the appellant is a adult man with Down Syndrome and a moderate learning disability - the respondent is a registered charity which provides a range of health and personal social services in respect of education, wellbeing, dignity, health and happiness of persons with an intellectual disability - the appellant and the notice party, an adult woman also with Down Syndrome, were seeking to be married - on the eve of the marriage, the respondent applied ex parte to the High Court for an order of warship and obtained an injunction restraining the appellant from participating in a ceremony of marriage until further order of the court - the appellant issued proceedings against the Minister for Health, the Minister for Justice and Equality, Ireland and the Attorney General seeking to challenge the Marriage of Lunatics Act 1811, the Lunacy Regulation (Ireland) Act 1871 and the wardship jurisdiction vested in the President of the High Court as well as an order is also compelling the bringing into force of s. 7 of the Assisted Decision-Making (Capacity) Act 2015 - the 1811 Act prohibits wards from being married - the appellant issued a motion seeking an order pursuant to O. 99 of the Rules of the Superior Courts relieving the appellant of any liability to pay costs to any party to the proceedings irrespective of the outcome (a protective costs order, "PCO") - the appellant sought an adjournment of the wardship proceedings pending the determination of the PCO motion - whether the trial judge failed to take into account relevant matters - whether the trial judge took account of irrelevant matters - whether there was a risk of injustice - appeal allowed - stay pending determination of PCO granted.

"The Okunade principles operate to reinforce established principles in our jurisprudence including that the overriding consideration in determining whether to grant or refuse a stay is to maintain a balance so that justice will not be denied to either party as was stated by McCarthy J. i, Redmond v. Ireland [1992] 2 I.R. 362 and reiterated in Emerald Meats Ltd. v. Minister for Agriculture
[1993] 2 I.R. 443"

"Those principles, when applied in the context of an application for the grant of a stay, involve the court engaging with the following considerations: (a) whether the applicant has established an arguable case – if not, the application must be refused... If an arguable case is demonstrated then: (b) the court should consider where the greatest risk of injustice would lie, but in doing so the court should: – (i) give all appropriate weight to the orderly implementation of measures which are prima facie valid; (ii) give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and (iii) give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings; but also (iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful."

"In addition to considerations (a) and (b):- (c) in the limited cases where it may be relevant, the court should have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and, (d) whereas the court is not to involve itself in a detailed investigation of fact or complex question of law, certainly in the context of judicial review, the court can place all due weight on the strength or weakness of an applicant’s case."

Collins J (concurring): Section 7(1) Assisted Decision-Making Capacity Act 2015 - where the balance of justice lies - whether there is a real risk that the appellant's proceedings will collapse as a result of an order for warship being made - Court must minimise the risk of injustice.

"The evidence before the Court establishes a very significant risk (at least) that A’s admission to wardship at this stage would prevent his marriage to F, effectively foreclose inquiry into his capacity to marry, bring to a premature conclusion the proceedings in which he seeks to assert and vindicate that right and effectively condemn him to remaining unmarried for the foreseeable future: all of this without any hearing whatever as to A’s capacity to marry. That would involve such a manifest and serious potential injustice to A – and F – that I find it difficult to envisage circumstances in which the Court could contemplate making an order having such effect. Certainly, exceptional countervailing factors would have to be present before it should do so."