The Gazette 1990

GAZETTE

JANUARY/FEBRUARY 1990

•

Civil Proceedings and the

State in Ireland: A

Practitioner's Guide

By Anthony M. Collins and

James O'Reilly. [Dublin: The

Round Hall Press. 1989. 439 and

li pp. Hardback IRE47.50]

Joseph Story wrote in

Miscellan-

eous Writings

that special plead-

ing contained the quintessence of

the law, and that no man ever

mastered it who was not, by that

very means, made a profound

lawyer. Anthony Collins and James

O'Reilly have written a book con-

taining pleadings and precedents

but also substantive law in relation

to civil proceedings and the State

in Ireland. Any barrister and sol-

icitor who masters the contents of

Civil Proceedings and the State in

Ireland

has the

potential

of becom-

ing a profound lawyer.

The President of the High Court,

The Hon. Mr. Jus t i ce Liam

Hamilton, in his foreword to the

book states that it was with a keen

sense of anticipation that he began

reading the proof copy that was

made available to him. Conscious

of the distinguished record of the

authors, your reviewer too looked

forward to reading the fruit of the

authors' labour with a sense of

expectation; your reviewer was not

disappointed.

The mission of the authors is

stated in the book's preface. The

book was written by practising

lawyers for practising lawyers -

judges, registrars, counsel and

solicitors. The authors stated that

they had endeavoured to describe

from the practitioner's viewpoint

those aspects of civil proceedings

involving the State encountered

most frequently.

The book is divided into two

parts: the first part deals with the

law and practice, while the second

contains precedents of pleadings,

including forms of relevant orders.

There are nine chapters in the

book. Cases stated - appeals by

way of case stated from the District

Court and various other forms of

cases stated - are dealt with in the

first two chapters. Chapter 3

outlines the practice concerning

enquiries under Article 40.4 of the

Constitution. The law and practice

on judicial review are set out in

Chapter

Judicial review, in the

context of constitutional and ad-

ministrative law, may almost be

compared to oxygen and the

process of life itself. The authors

describe the functions of the for-

mer state side orders of certiorari,

mandamus, prohibition and quo

warranto. Substantial amendments

have been made to the procedure

whereby these reliefs are obtained;

the procedure is now provided for

in Order 84 of the

Rules of the

Superior Courts 1986.

The various

Rules of Order 84, together with

the substantive law on the orders

of certiorari, mandamus, prohibit-

ion, quo warranto, declarations and

injunctions are carefully examined

in Chapter 4. The authors correctly

allow much of this judge-made law

to speak for itself (as it were) by

generous use of quotation from the

pronouncements of the judges

themselves. This is to be wel-

comed. The use of indented quota-

tions breaks up the solidity of a

page of text, making the page

much easier to read. Moreover, it is

often futile to summarise in one's

own words what the judge said -

if the words of the judge can be

encapsulated into a neat quotation.

"Constitutional Litigation" is the

heading of Chaper 5. Issues such

as who may raise a question of

constitutional law; who are the

appropriate parties in constitutional

actions; what can be challenged;

and by whom and where may a

question of constitutional law be

raised and what relief should be

sought are considered under this

heading.

The procedure applicable to

references to the Supreme Court

under Article 26 of the Constitution

of a Bill passed by both Houses of

the Oireachtas is dealt with in

Chapter 6. Chapter 7 describes

relator proceedings. Relator pro-

ceedings arise when the Attorney

General gives his consent authoris-

ing the issue of civil proceedings in

his name at the relation or instiga-

tion of a private person, association

or incorporated body seeking a

form of relief in the public domain.

This form of proceeding may be

utilised more often in the future.

The last two chapters deal with

what the authors term "the

European dimension". Chapter 8

explains procedural aspects of

Community law and Irish law.

Chapter 9 sets out the procedures

before the European Commission

of Human Rights and the European

Court of Human Rights. Detailed

precedents of pleadings are set out

in the remaining part of the text.

Anthony Collins and James

O'Reilly have succeeded admirably

in the task they set themselves.

The authors have written a book

that will become a classic of its

kind; they have secured two inches

of glory on the bookshelves of time.

Francis Bacon wrote in

Advance-

ment of Learning

that the book -

the monument of learning - was

more durable thatn the monuments

of power, or of the hands. Books

outlive people and palaces.

John Campbell in

Lives of the

Lord Chancellors

(1849) quotes the

advice of John Singleton Copley,

Baron Lyndhurst, Lord Chancellor,

who stated that it was the duty of

a judge to make it disagreeable for

counsel to talk nonsense. In the

context of ever-increasing litigation

involving aspects of constitutional,

administrative and European Com-

munity law, and despite the authors

disclaiming any responsibility for

any errors or omissions within the

covers of the book,

Civil Pro-

ceedings and the State

will en-

lighten judges, registrars, counsel

and solicitors. Lawyers without

Anthony Collins and J ames

O'Reilly's book will be impover-

ished in their legal calling.

Civil

Proceedings and the State

can be

heartily recommended.

Eamonn G. Hall