Irish Court of Appeal

 

THE COURT OF APPEAL

 

 

Approved

No Redaction Needed

Record Number: 2024/255

High Court Record Number: 2023/4298P

Neutral Citation Number [2025] IECA 62

Allen J.

Meenan J.

O'Moore J.

 

BETWEEN/

JOHN D FLANAGAN

PLAINTIFF

-AND-

 

ANN CORCORAN, LUKE BUTLER AND CORCORAN AUTOBODY WORKS LIMITED

 

DEFENDANTS

-AND-

 

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

 

THIRD PARTY

 

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 14th day of March, 2025.

1.             In an ex tempore judgment delivered on the 30^th July, 2024 the High Court (Cregan J.) dismissed an application by the Plaintiff for an interlocutory injunction.  The Plaintiff failed to appeal against that judgment within time. He has therefore brought an application to extend the time within which to appeal the judgment and order of the High Court. That application was heard by this Court on the 6^th March, 2025.  This is my judgment on that application.

2.             At the outset, I should note an unusual difficulty which arises in respect of this judgment.  It has been my habit in writing judgments to refer to the parties by name.  However, in this case the applicant objects to being described as "Mr. Flanagan".  At the hearing before Cregan J. (and at p. 9 of the Transcript) the applicant stated: -

"I mean people might think that being called Mr. or Ms. is an honour of some sort, a title, but we all know it's not.  I am John, that's my given name.  John the Imperial Flanagan.  But when I travel in Éire I'm Sean Deaglán Ó Flannagáin."

3.             In an email sent to the Court of Appeal office on the 4^th March 2025, the applicant elaborated upon this position.  This email contains the following text: -

"1.       I am the Appellant in this matter, and I'll be attending Court on Thursday 6^th March as Sovereign.  I will not be appearing in person. 

2.         As Sovereign, and Diplomat, I am attaining my rights as Sovereign and indefeasible in Natural Law. 

3.         I am appointing the Sitting Judges as Trustees on my Estate to uphold my Sovereign and Indefeasible Rights in Natural Law within the Protective Provisions of the Constitution."

4.             I am aware of a number of actions in which litigants have sought to appoint the judges hearing their cases (or procedural motions in such cases) as trustees either over the interests of the litigant themselves or, even more strangely, trustees over the action as a thing in itself.  It is difficult to know what perceived purpose this purported appointment of judges as trustees might serve.  Possibly, it is thought to give some form of protection to the proceedings which otherwise would not apply.  In any event, I am satisfied that this device is simply a pseudo-legal nonsense without any effect and done for reasons which are at best confused and at worst malign. 

5.             However, in deference to the applicant's wishes, he will throughout this judgment be described not by name but as "the applicant".

6.              The motion in the High Court sought the following interlocutory relief: -

"An order directing the Defendants to release forthwith to the Plaintiff his Private Property."

7.             The property in issue is a 2022 registered BMW X5 motor vehicle.  The evidence before the trial judge was that, on the 11^th August, 2023, the appellant was driving his vehicle at a speed of 155km per hour in a 120km per hour zone.  He was followed and apprehended by the gardaí.  The following exchange then occurred: -

"Having indicated to the Plaintiff the reason for the stop, [Garda O'Mahony] requested the Plaintiff to produce his driving licence.  The Plaintiff did not have a driving licence but instead produced a card from what was described as 'the Irish Republican Brotherhood'.  Garda O'Mahony noted that there was no tax disc displayed on the vehicle.  Upon checking the vehicle on the garda mobility device, it transpired that the vehicle had, in fact, never been taxed."

8.             The BMW was seized pursuant to the Road Traffic Act, 1994 and Art. 4 of the Road Traffic Act (Section 41) Regulations 1995 given that Garda O'Mahony had formed the opinion that an offence to which s. 41(1) of the Act applied had been committed.  The applicant was notified of the location where the BMW was being stored, and the procedure to be followed to secure release of the car together with the charges to be paid by him.  The applicant has not availed of these procedures to secure the release of the BMW.  In his replying submission at the hearing of the appeal, the applicant stated that he had in fact met all of the requirements set out for release of the vehicle set out in the letter which had been sent to him. However, that letter is clearly mistaken in referring to the applicant producing evidence that he does not hold a driving licence; the requirement is that the applicant holds a current driving licence, and it does not avail the applicant to argue that he is entitled to return of the BMW on the basis of clearly erroneous correspondence.  While the applicant disputes the applicability of these legal provisions to him, the factual description of what occurred (set out in a replying affidavit of Inspector Joseph Culleton of Portlaoise Garda Station) has not been contradicted on oath by Mr. Flanagan.

9.             In his replying affidavit to that of Inspector Culleton, the appellant states (at para. 8):-

"Regarding paragraph 8 of the JOSEPH CULLETON affidavit I say that this goes to the crux of the Substantive Matter.  I am a Sovereign Living Man, Ever Present from Fertilisation until Last Breath, and that I do not identify as a Person under section 41 of the Road Traffic Act.  I made this position very clear to Ciaran O'Mahony on 11^th August 2023, and indeed again to the Acting Garda member at Portlaoise Garda Station, who is also very professional, courteous and respectful.  I do not accept that any such legislation entitles a member of An Garda Síochána to arrange the detention, removal and storage of Private Property to be held at ransom and not return the Private Property to a Sovereign Living Man or Woman in Eire without payment of the ransom.  I, as a Sovereign Living Man, and a Citizen of the Republic of Ireland, the Irish Republic.  I rely on the Constitution of the Republic of Ireland, proclaimed in arms on Easter Monday, April 24^th 1916, and established by the Will and Wish of the People of Ireland, on January 21^st 1919, whereby at Article 1 the Sovereignty of the Nation is inalienable and all authority in Ireland - legislative, executive and judicial - and all powers of Government are derived solely, under God, from the People of Ireland.  I am of the People of Ireland, I do not consent to being identified as a person under the Road Traffic Act.  The Proclamation of the Irish Republic to the People of Ireland declares the right of the People of Ireland to the ownership of Ireland, and the unfettered control of Irish destinies, to be Sovereign and Indefeasible.  And this is the principal position of the law of the land of Éire."

10.         Later in the same affidavit, at para. 12, the appellant elaborates upon his position as follows: -

"It is also true that the BMW X5 did not bear a tax disc from a corporate government.  As is my right as a Sovereign Living Man I did not volunteer for such a tax as when I looked into this tax I discovered that it is in fact a licence for a mechanically propelled vehicle which would confirm me as a driver in commerce and I wish to use my BMW X5 in the Private (sic)."

11.         The applicant was equally clear at the hearing of the appeal. He stoutly maintained that the relevant legislation simply did not apply to him. As is acknowledged in his own affidavit evidence, this is "the crux" of the applicant's position. It is a legally untenable stance.

12.         In a very careful ex tempore judgment, the trial judge found that there was a serious issue to be tried, for the following reasons: -

"In my view, the strongest issue that I can identify as an issue to be tried is whether or not the legislation and the rules governing the impounding and detention of vehicles for non-payment of car tax are constitutional or unconstitutional.  The question of whether they might be unconstitutional as being an unjust or unreasonable infringement of personal property rights seems to me to be at the heart of the plaintiff's case.  And that case is of course statable and that seems to me to be at the heart of the plaintiff's case insofar as I can make it out in respect of the plenary summons."

13.         On the question of the strength of the case, given that a mandatory injunction was sought, the trial judge concluded that a sufficiently powerful case had not been made by the appellant.  He found: -

"However, the plaintiff must go beyond that and seek a mandatory injunction.  And the plaintiff must establish that he has a strong case that he is likely to succeed at trial under the Maha Lingham principle.  Given the presumption of constitutionality, I am not satisfied that the plaintiff has established that he has a strong case that he is likely to succeed at trial.  The presumption of constitutionality must be given some weight, and I believe that the third party has established a legal chain which entitles him to d what he does."

14.         The trial judge then went on to refer to submissions on behalf of the Garda Commissioner which refer to s. 7 of the Garda Síochána Act 2005, section 41 of the Road Traffic Act 1994, and the 2011 Detention of Vehicles Regulations.  The trial judge concluded that these provisions provided for "precisely what's happened in this case."

15.         The trial judge went on to find that it was "clear" that damages would be an adequate remedy for the appellant.  He also found that the balance of convenience did not favour the granting of an injunction on the facts of this case.  Not only was the status quo (to be maintained by the court) that the car had been lawfully seized and lawfully detained but in addition: -

"The plaintiff has within his own control the ability to organise the release of the car from detention by establishing that he is the registered owner of the car and/or by paying the appropriate detention charges.  Given that he has it within his own control, I do not believe that the balance of convenience is in favour of the Court granting an injunction against the defendants and/or the third party in respect of this matter."

For these various reasons, the trial judge refused the application for interlocutory relief. 

16.         The appellant, in his draft notice of appeal, has been admirably concise.  The grounds of appeal read as follows: -

"(1)      Article 43.1.1 and Article 43.1.2 of An Bunreacht.

(2)        Article 1 of the Constitution of the Republic of Ireland proclaimed on Easter Monday 1916 and established by the Will and Wish of the People of Ireland 21^st January 1919."

17.         In his written submissions on this motion to extend time, the appellant refers to Eire Continental Trading Company v Clonmel Foods Limited [1955] 1 IR 170, which sets out three criteria (accepted by the respondents to the application) which are as follows: -

"(1)      The applicant must show that he had a bona fide intention to appeal formed within the permitted time;

(2)        The applicant must show the existence of something like mistake;

(3)        The applicant must establish an arguable ground of appeal."

18.         Citing Goode Concrete v CRH Plc. [2013] IESC 39, the appellant submits (to use the wording of his written submissions) that: -

"It is submitted that by virtue of the contents of the Affidavits that the Plaintiff has several arguable grounds of appeal.  It is further submitted that the appeal by the plaintiff is in any manner wholly meritorious."

19.         However, the applicant does not specify exactly what real grounds of appeal he has against the conclusions of the trial judge.

20.         The applicant makes a specific argument based on Tracey v McCarthy [2017] IESC 7, to the following effect: -

"It is submitted that the plaintiff was not legally represented and did not have the benefit of any legal advice.  It is also a fact that the plaintiff did not receive a copy or even notice of a perfected order in time to permit(?) an ordinary appeal within the relevant timelines.  Thus, Tracey is to his benefit given his unrepresented status."

21.         The facts of Tracey are very different.  In particular, in that case the formal order of the High Court appears to have been backdated which had the effect of wrongfooting the potential appellant who received a copy of the order after the time for the launching of an appeal had lapsed.  That is not the case here. 

22.         In his written submissions, the applicant then refers to a range of different cases, each of which were decided on their own facts.  He has been unable to identify how any of the facts of these other cases are sufficiently analogous to his own situation to be of particular relevance to the current application.  At the end of his written submissions, the applicant advances (not for the first time) the proposition that the balance of justice must be considered and that that favours the provision of the extension of time sought.  However, unless the applicant can satisfy the court that there is at least an arguable ground of appeal against the order of the High Court, it is impossible to see how the balance of justice would favour making an order which allows such an appeal to be brought.  To put it differently, the bringing, prosecution and hearing of any appeal necessarily involves effort and expense on the part of all sides.  Sometimes, the effort and expense involved can be very significant.  It is not in the interests of justice to facilitate the bringing of such an appeal in circumstances where the appellant cannot even point to arguable grounds supporting the appeal.

23.         At the hearing of the appeal, the applicant was asked by the Court to set out comprehensively what he said the High Court judge had got wrong. He identified a number of issues. Firstly, he said that the trial judge merely had the "bare bones" of the facts and that more information had been provided in the subsequent affidavits and pleadings provided by the applicant. However, no detail of any such relevant information was described by the applicant; in any event, the trial judge cannot be criticised for deciding the motion on the information and evidence put before him. Secondly, it is said that the trial judge erred in not understanding the concept of beneficial ownership of a motor vehicle. This is a particularly unfair criticism; the trial judge found that (notwithstanding what he felt was an "equivocal" stance by the applicant) he should give "[the applicant] the benefit of the doubt for today's application and I have assumed for the purpose of today's application that he was the owner." Thirdly, the applicant argued that the trial judge was wrong to accord a presumption of constitutionality to the legislation providing for the seizure of the BMW. I can see no error in this regard on the part of the trial judge.

24.         While the respondents claim that none of the Eire Continental tests have been met, it seems to me that this application can be decided on the basis of the third of these tests.  In doing so, I am fully conscious of the fact that these three criteria are not to be slavishly applied, in the sense that a failure on the part of an applicant to meet one of them means that the extension of time must be refused.  However, considering matters in the round and in particular considering the requirements of justice—much emphasised by the applicant—I have come to the view that there is no basis advanced by him on which the order of the trial judge could conceivably be reversed.  If anything, the ruling of the High Court was unusually favourable to the applicant, given the finding that there was a serious issue to be tried notwithstanding the fact that the constitutionality of the legislation (at least in the manner framed by the trial judge) was not really raised by the applicant in the court below and, more importantly, the relevant party who must be joined in the event of any challenge to legislation was not even in the proceedings at the time the application for interlocutory relief was moved.  Indeed, this party ( the Attorney General) is not in the litigation even now.

25.         As the applicant has been unable to identify any argument that would provide him with even a glimmer of hope that the ruling of the trial judge would be upset on appeal, I believe it is not in the interests of justice to extend the time to allow such an appeal to be brought.  I would refuse the application.

26.         For the sake of completeness, I should also record that the applicant has not met the requirement that he show he formed the intention to appeal within the specified time. Strikingly, the applicant nowhere avers that he had formed such an intention. His written submissions to this court state that at the hearing before the trial judge, he had "made up his mind to consider the making of the appeal." [Emphasis added.] This position, which is supported by his use of the word "possibly" in answer to the trial judge's question as to whether the applicant wanted a copy of the DAR for the purpose of an appeal, is quite contrary to what the applicant said to this court (namely that he had informed the trial judge that he would appeal). The applicant's written submissions to this Court also state that he "did not have available all of the information necessary to make [his] mind up as to the making of the Appeal within the relevant timelines." Not only has the applicant failed to state clearly on oath that he had formed the requisite intention to appeal within the appropriate time, his own submissions suggest strongly that he had not done so. However, the basis upon which the current motion fails is that the substantive appeal is simply hopeless, and granting an extension of time to facilitate it would not be in the interests of justice.

27.         My provisional view is that the respondents to the motion are entitled to their costs, as they have been entirely successful. If the applicant wishes to seek a different costs order on the motion, he should provide a brief written submission (not more than 2,000 words) by 5 pm on the 28^th of March 2025. The respondents will have until 5 pm on the 9^th of April 2025 to deliver replying submissions, each limited to 2000 words.

28.         Allen and Meenan JJ. agree with this judgment.

Result    Application Refused