About this case:

• Citation:
  [2026] IECA 54
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Nuala Butler

Delivering judgment for the Court of Appeal in March, Ms Justice Nuala Butler explained: “Whilst a litigant who chooses to proceed in person is not entitled to preferential treatment over litigants who are legally represented, it is certainly arguable that a litigant-in-person who also has a disability may require greater accommodations than would otherwise be the case to ensure that their right of access to the courts is fully vindicated.”

Background

On 27 September 2019, the appellant was arrested under s.24 of the Criminal Justice (Public Order) Act 1994 for the offences of threatening, abusive or insulting behaviour in public and failure to comply with a direction of a member of An Garda Síochána, which offences occurred outside a residential premises occupied by the appellant’s daughter and grandchild.

It was alleged that gardaí had observed the appellant banging her cane on the railings of the house and that when approached, the appellant became aggressive toward gardaí, culminating in her “swinging her walking cane… and shouting at us to f*** off several times that she’d have our jobs (sic)”.   

The appellant was convicted in the District Court on 22 September 2020 and was ordered to pay fines of €150 in respect of each of those offences. The appellant appealed to the Circuit Court.

At the outset of the appeal hearing, the appellant’s legal representatives successfully applied to come off record on the basis that the appellant no longer had confidence in them acting on her behalf.

The appellant then sought to adjourn the hearing on the basis that she was not ready to proceed, an application which was denied by the trial judge on the basis that there had been a number of previous adjournments.

The Circuit Court ultimately affirmed the ruling of the District Court, holding that the appellant’s version of events, which included that gardaí had never identified themselves and had assaulted her, was “fanciful, frivolous and absolutely incredible”.

The High Court

The appellant sought leave to apply for an order of certiorari quashing the Circuit Court order and for declarations that the respondent judge failed to consider fair procedures by inter alia not permitting the appellant the right to be heard, to cross-examine, to adjourn and failed to give reasons for refusing her appeal.

Mr Justice Charles Meenan, having examined the transcript of the Circuit Court hearing, was not satisfied that the appellant had reached the appropriate threshold under which leave to apply for judicial review could be granted and refused the appellant’s application.

The appellant then appealed to the Court of Appeal on grounds including that the High Court failed to consider fair procedures under Article 40.3 of the Constitution and the application of Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), failed to give adequate reasons for its decision and failed to consider the proportionality of dismissing the appeal.

The Court of Appeal

Having set out the threshold for granting leave to apply for judicial review as per G. v. DPP [1994] 1 IR 374, Ms Justice Butler noted that the threshold of establishing arguable grounds for the grant of relief comprises both legal and factual components and continued: “It is not sufficient to establish a legal proposition in vacuo, there must be a factual basis for saying that the application of that legal proposition in the particular circumstances would justify the grant of relief to the applicant.”

Highlighting that the appellant had asserted general rights to inter alia a fair trial, to access to the courts and to be treated in a non-discriminatory fashion under the UNCRPD, the Court of Appeal explained that to be entitled to relief, it was not sufficient for the appellant to merely establish the existence of a right and that the appellant had not established that there were grounds for contending that the rights in question were breached.

Finding that, for the most part, the High Court was correct in concluding that the appellant had not established arguable grounds for the relief sought, the court turned to the Circuit Court’s refusal of an adjournment to the appellant to allow her to prepare for her case as a litigant in person.

Ms Justice Butler noted that the appellant had told the respondent judge that she needed time to prepare following the coming off record of her legal team and that she was blind and had been accompanied by an assistant who had to leave in order to attend another client and could not be left alone in the court building.

Notwithstanding that it appeared to the Court of Appeal that the assistant had not abandoned the appellant in the court building, the court accepted that it must have been stressful for the appellant to apprehend that she might have been left alone in the courthouse unable to find her way out of the building.

Ms Justice Butler observed that in the course of the brief adjournment application, the respondent did not make any enquiry as to how the appellant’s disability impacted on her ability to present her case, nor as to the role of her assistant or how the absence of her assistant might impact the appellant in the presentation of her case.

The judge further considered that the appellant had indicated to the Circuit Court that the previous adjournments were not her fault, but had failed to explain that the adjournments were due to the death of her brother and that her daughter, apparently a witness, had caught COVID-19 and was restricted from attending court due to the public health measures then in place.

Finding that the complaint against the respondent judge was based, in part, on grounds which were not brought to the respondent’s attention at the time she refused the adjournment, Ms Justice Butler was satisfied that the respondent “may well have had reason to be sceptical of the appellant’s application for an adjournment following immediately on the discharge of her legal team”.

Ms Justice Butler continued: “Nonetheless, the respondent was aware of the appellant’s disability, the fact that her assistant needed to leave and, of course, that the appellant was now a litigant-in-person responsible for the presentation of her own case.”

Taking the view that the arguable grounds threshold had been reached on the issue of whether it was a breach of fair procedures to refuse an adjournment to allow the appellant further time to prepare her case in the circumstances, the court opined that it was arguable that a disabled litigant in person may require greater accommodations than would otherwise be the case to ensure that their right of access to the courts is fully vindicated.

Following a perusal of the transcript, the Court of Appeal was not convinced that the appellant’s fair trial rights to cross-examine prosecution witnesses, to call witnesses and to make submissions to the court had been breached by the Circuit Court, and determined that the Circuit Court had given a reasoned decision.

The court further concluded that the appellant’s complaints to the effect that the respondent judge was biased, had discriminated against her and failed to vindicate her right of access to justice were of “absolutely no merit”.

Conclusion

Accordingly, the Court of Appeal granted leave to apply for judicial review on the sole ground that the respondent erred in refusing an adjournment where the appellant, as a person with a disability, needed additional time to prepare for the appeal and that the refusal violated her right of access to the courts in breach of Article 40.3 of the Constitution and/or Article 6 of the European Convention on Human Rights and/or Article 13 of the UNCRPD.

Marion Kane v Judge of the Circuit Court [2026] IECA 54