THE HIGH COURT
									JUDICIAL REVIEW
									1996 No. 216 J.R.

BETWEEN

CON O'CONNELL
									APPLICANT
AND
IRELAND, THE ATTORNEY GENERAL, MINISTER FOR JUSTICE
AND MINISTER FOR FINANCE
									RESPONDENTS

Judgment of Mr. Justice Geoghegan delivered the 31st day of July, 1997.

	By Order of the High Court made by Mr. Justice Carney on the 23rd July, 1996, the Applicant was given leave to apply for Declaration by way of application for Judicial Review in respect of Section 65 of the Courts of Justice Act, 1936 and the Regulations made thereunder on the grounds set forth in paragraph 5 of the Applicant's Statement of Grounds.  Paragraph 5 reads as follows:-

	"The grounds upon which the relief sought in paragraph 4 is that the provisions of Section 65 of the Courts of Justice Act, 1936 and the Regulations made thereunder bar an impecunious plaintiff from access to the Courts and the administration of justice.  The said provision discriminates against the applicant and breaches his constitutional rights under Article 40.1 and 3 of the Constitution."

The application now before me is brought pursuant to that leave.  A Statement of Opposition has been delivered and filed which in addition to opposing the substantive grounds of application, challenges the right of the Applicant to bring the application both on grounds of locus standi and on the grounds that the application is now in the events which have happened, merely a moot.  I think that I must first address these preliminary objections.  
	The background to the application is as follows.  In 1991 the Applicant instituted proceedings in the High Court against Ireland, the Attorney General and the Ministers for Health, Finance and Social Welfare and the Southern Health Board arising out of matters relating to the Disabled Persons (Maintenance) Allowance Regulations.  The proceedings had taken the form of an application for leave to bring a Judicial Review application but Mr. Justice Lavan, in granting leave, had directed that the proceedings be commenced by Plenary Summons.  Accordingly, the proceedings then followed the normal course of an action commenced by Plenary Summons.  In August 1994, the Applicant, who was litigating in person, made the appropriate application to the Central Office to file the Notice of Trial and set down the action for hearing.  The Applicant was informed by the office that he would have to pay £53 stamp duty.  Not having sufficient funds to pay the stamp duty, he made an ex-parte application to Mr. Justice Carney for an Order directing the State authorities to waive the requirement for the payment of stamp duty on the grounds that it was blocking his right of access to the Courts.  The Judge adjourned the matter overnight to enable him to consider whether he had any such power to make the Order requested and on the following day he ruled that he did not believe that he had such a power but that as the point raised was one of such considerable public importance, he made an Order assigning the Applicant a Solicitor and Senior and Junior Counsel to be certified under the Attorney General's Scheme for the purposes of making a formal application for waiver of the payment of the stamp duty.  That Order was made on the 12th August, 1994.  No legal proceedings were taken pursuant to or in the context of that Order until the matter appears to have been personally mentioned by the Applicant to Mr. Justice Carney when he was sitting in connection with Circuit Appeals in Cork in March 1996.  Paragraph 11 of the Applicant's Affidavit purports to set out the reasons for the delay.  The paragraph reads as follows:-

	"The processing of this present application for Judicial Review was assigned to my Solicitors herein who retained Counsel on my behalf.  Initially the application was postponed because a case in which a claim somewhat akin to that made in this application was being canvassed before Mr. Justice McCracken.  That case was decided in the summer of 1995 and is the case of Coughlan -v- Ireland and the Attorney General.  I beg to refer to the judgment therein when produced.  Thereafter, my Solicitor was absent on maternity leave and I was unable to access my then Junior Counsel.  After many months I wrote to my Solicitor and requested that alternative Counsel be retained so that this matter could be expedited.  I made an appearance before Mr. Justice Carney when he sat in Cork on assizes in March 1996 to indicate and explain the delay in processing this matter and to express my apology to him and to permit me to continue.  Mr. Justice Carney gave me such permission having graciously heard me."

As far as I am aware no formal Order of Mr. Justice Carney's in respect of the airing of the matter on that day was ever drawn up and I am under the impression that he may not have made any kind of formal Order but was regarding the matter as being mentioned to him out of courtesy.  It is difficult to see what precise Order he would have made at that stage at any rate given that up to then the only Order which he made was an Order assigning Solicitor and Counsel under the Attorney General's Scheme.  Furthermore, the paragraph is somewhat misleading, though I think unintentionally so.  It speaks of "the processing of this present application for Judicial Review" but from the earlier part of the Applicant's own Affidavit it would seem that Mr. Justice Carney may have contemplated that a formal application would have been made for waiver of the fees and that he had not made a final ruling on the matter.  But that is not entirely clear and it is possible that the type of proceedings he envisaged were Judicial Review.  I think that what he really had in mind was that the Applicant was to be free to bring any kind of proceedings he liked as might be advised by the Counsel and Solicitor assigned to him.  Nothing very much turns on any of that, however, because an application for leave to bring Judicial Review proceedings was in fact granted as I have already mentioned by Mr. Justice Carney on the 23rd July, 1996.
	In the meantime, the whole problem of the stamp duty and the inability to pay it had become wholly irrelevant as far as the Applicant was concerned.  He borrowed the money to pay the stamp duty and any further duty that became payable without any liability for interest from some member of his family and he was successful in his original High Court proceedings which were determined by a judgment of Mr. Justice Barron delivered on the 31st July, 1995.  He was awarded his expenses against the State.  Although the Order of the High Court was appealed to the Supreme Court, the appeal was not pursued and by consent it was struck out by the Supreme Court and the High Court Order affirmed on the 25th April, 1996.  By the same Order, the Supreme Court directed the Defendants to pay to the Plaintiff the costs of the appeal to the Supreme Court in an agreed sum of £726.27.  The costs in the High Court were taxed at £1,018.00.  It is not in dispute that the High Court costs were paid over to the Applicant, enclosed in a registered letter of the 25th March, 1996 and that the Supreme Court costs were paid over, enclosed with another registered letter of the 8th May, 1996.  Before ever leave was granted therefore to bring these Judicial Review proceedings, the original proceedings were entirely disposed of and all costs awarded already paid.  However, I have little doubt that quite apart from any consideration of whether the Applicant might at least have an arguable case on locus standi, Mr. Justice Carney would have regarded the granting of leave as in practice, a kind of extension of time for bringing appropriate proceedings in the light of what he had been told in Cork in March 1996 by the Applicant himself of the problems which had occurred in the meantime.
	But now that this Judicial Review application has come on for hearing, the State is perfectly entitled to argue the locus standi point and linked with it the submission that this application is now a moot and that that being so, the Court should not grant the relief, particularly when part of the relief might involve a Declaration as to the unconstitutionality of the statutory provisions.  I am quite satisfied that the Respondents' objections on these grounds are well founded and that I should refuse the application without considering the substantive argument, however important and interesting that argument may be.  A number of authorities were cited to me but there are two which are particularly relevant.  In the well-known case of Cahill -v- Sutton, 1980 I.R. 269, in the judgment of Henchy J. at p.282, the following passage appears:-

	"...... In other jurisdictions the widely accepted practice of Courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming a victim of it.  This general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right.  In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger's own circumstances."

While that passage, strictly speaking, refers to attacks on the constitutionality of a statutory provision, I think that it would be equally relevant to an attack on provisions of a statutory instrument if the suggestion was that the statutory instrument was, ultra vires, the maker of it by reason of its infringing the Constitution.  Therefore in this case whether the attack is ultimately on the statute or the statutory instrument, the Applicant has no locus standi because he was not in fact damaged by the operation of either the Act or the Regulations made under it.  His access to the Court was not prevented because he actually did borrow the stamp duty without any liability for interest and not only that, but he went on to win his action in the High Court and on appeal, in the Supreme Court and recovered all his out of pocket expenses from the State.  Of course, even if none of that were so, the State might well have a good answer to the application on the grounds that he could have applied for legal aid but that is not something which I need to consider.  
	The obligation imposed on the Applicant to pay stamp duty did not in the events that happened in any way impede his right of access to the Courts or lead to his incurring any loss or damage whatsoever.  In these circumstances he has, in my opinion, no locus standi to bring this application.
	In addition to the principle of locus standi, there is the related principle that a Court ought not to pronounce on the constitutionality of legislation if to do so would effectively be a moot (see McDaid -v- Judge Sheehy, 1991 1 I.R. 1).  
	Having regard to the views which I have expressed, it is not necessary for me to consider the further question of whether if, as in this case, legal aid would probably have been available that would preclude the Applicant from complaining that Court fees denied him access to the Courts, though on the face of it I would see no reason not to follow the unreported judgment of McCracken J. delivered the 12th July, 1995 in Coughlan -v- Ireland, which was to the effect that in such a case a person would be so precluded.
	The interesting question of whether a person who is genuinely deprived of access to the Courts by reason of an inability to pay the stamp duty and Court fees, cannot be considered in this case but must await an appropriate case where the point does genuinely arise.
	For the record, there is one other matter which I should mention.  It was argued on behalf of the Applicant that he might want to institute some proceedings in the future but it was not suggested that any particular form of proceedings were either contemplated or planned.