High Court Judge Rejects Medical Certificates For iIl Lay Litigant As Inadequate

national | rights, freedoms and repression | news report

Saturday March 26, 2011 13:02

by Justin Morahan

CASES AGAINST THE STATE, GARDAI AND COURTS SERVICE STRUCK OUT IN MAN'S ABSENCE BY PRESIDENT OF THE HIGH COURT

SUMMARY: If the State, in the name of the Irish people, prosecutes you wrongfully or maliciously, and the State loses, you can sue for damages. When you are good and ready to go ahead, the State can send you a letter ordering you to appear in another court where they will ask another judge to strike out your case. The reasons given are usually that your case is "vexatious" or "unlikely to succeed". Or if you fall ill and under doctor's orders, the reason could be "for want of prosecution".
Kevin Tracey's six cases were struck out by the President of the High Court on 4 March last. His doctor's and hospital consultant's certificates were deemed by the Judge to be inadequate. He is allowed to "appeal" to the Supreme Court but as a lay litigant who is still under doctor's orders, the odds are stacked against him to carry through or win such an appeal.

"Even a Man on his Death Bed Would be Able to Write an Affidavit", said President of High Court

In Dublin's Four Courts, on Friday 4th March 2011, a lay litigant, Kevin Tracey, had six of the cases he was taking against the State and Courts Service struck out for want of prosecution by him while he was ill and unable to attend court. The cases taken by Kevin Tracey were related to ten prosecutions of himself by the State. The State had lost all cases except for one which it had withdrawn on the morning on which the case was due to be heard after numerous witnesses from the Courts Service had been sub-poenaed. Kevin Tracey contends that all of the prosecutions are malicious.

On foot of the results of these different and separate cases (which the State had lost or withdrawn) Kevin Tracey had been engaged in suing the State and others for malicious prosecution of him. However, he was suddenly struck down by illness in July 2010 after which he was hospitalized for several weeks. He has been attempting to recuperate since then and remains under doctor's medical care and advice.

The sudden illness and its aftermath prevented him from attending court or engaging in the work of prosecuting any of the six cases. He was hoping to have all six cases heard by a Judge and jury. The courts were kept informed by his wife of his inability to attend because of his continuing illness and the fact that he was under doctor's orders. Hospital and GP certificates were provided to the Court.

The GP's first certificate, dated 2 September 2010, stated that Kevin Tracey would not be able to conduct his affairs for a period of six months.

In the Four Courts, on Friday 4th March, Justin Morahan, a human rights activist, handed Judge Nicholas Kearns the most recent certificate from Kevin Tracey's GP, dated 23 February 2011. This certificate stated, after outlining his medical condition, that Kevin Tracey would be unable to work or attend court for the next six months.

On Friday 4 March 2011, the State and the Courts Service asked that all of the cases be struck out for want of prosecution basing their case on a Motion and an Affidavit written by Niall O'Shea of the State Solicitors office. They said that there had been an inexcusable and inordinate delay and they had suffered prejudice. The Courts Service contended that court clerk Bernard Neary who was among those being sued by Kevin Tracey, had forgotten the incidents about which he was being sued.

Judge Nicholas Kearns allowed Justin Morahan to make a verbal submission. Justin Morahan said that he had come to court only to explain Kevin Tracey's absence and to hand in his doctor's certificate that had been requested by the Judge. He said that he had no legal training and he was up against eminent barristers and solicitors. He asked that the motion of the State and Courts Service be struck out, so that Kevin Tracey could prosecute his cases when he was in better health. These were cases where the State and its agents had engaged in the most serious wrongdoing against Kevin Tracey. Justin Morahan said that Kevin Tracey, even in the words of the State Solicitor's Affidavit, had "advanced the litigation in an expedient and determined manner" until July 2010, - and that was the exact date of Kevin Tracey's sudden illness and hospitalisation.

It would be a very grave and serious miscarriage of justice, Justin Morahan said, if a man's inability to come to court - an inability vouched for by his GP and Hospital Consultant - were to allow the State and Courts Service to have these prosecutions against them for their own serious wrongdoing struck out before they could be heard by a judge and jury.

The Judge remarked that he would not be accepting Kevin Tracey's Doctor's certificate as adequate.

When Judge Kearns then began to give his verbal judgement, Justin Morahan interjected to say that he had an important point of information that he wished to supply to the court before judgement was entered. Some weeks ago, while KevinT racey's first certificate was still valid and Kevin Tracey was unable to attend court, Judge Kearns had proceeded, in Kevin Tracey's absence, to deal with two other of his cases, struck out one of them, and removed the second one from the jury to the non-jury list. These decisions of Judge Kearns were now being appealed to the Supreme Court and as a result, on Kevin Tracey's behalf, he was asking Judge Kearns to recuse himself from this case.

Mr Justice Kearns refused this request.

The President of the High Court, Mr Justice Kearns, in his judgement, rejected the GP's medical report. He said that he had heard nothing to convince him that the delay was not inexcusable and inordinate. Some of the defendants had even forgotten the events. Kevin Tracey should have replied to the State Solicitor's (Niall O'Shea's)recent Affidavit. Even a man on his death bed would be able to write an Affidavit, he said.

The Court, he said, had previously made a specific regulation that a detailed medical report from an appropriate expert was needed by the Court if these cases were to be adjourned again and this regulation had not been met in the certificates handed into the court.

He granted the motion of the State and Courts Service and accordingly struck out all of Kevin Tracey's cases against them

Immediately after the judgement, Justin Morahan asked Mr Justice Kearns as a point of clarification who he (Judge Kearns) would regard as an appropriate medical expert. The Judge replied that he was not used to having the clarity of his judgements questioned but again said that the medical report he had been given did not meet the required standards.

He awarded costs to both the State and the Courts Service. He said that Kevin Tracey had the right of appeal to the Supreme Court.

DIFFERENCE OF OPINION ON CONFIDENTIALITY OF DOCTOR'S CERTIFICATE

Before the case was heard, during the first call, Justin Morahan handed the original copy of the doctor's certificate to Mr Justice Kearns, telling him that, as it was the original copy. Kevin Tracey would need to get it back, as he would need it for other purposes and he (Justin Morahan) would supply the Judge with a copy that he could compare with he original.The detailed information about Kevin Tracey's health that was contained in the certificate was private and confidential. He then gave copies to the representatives of the State and Courts Service after they requested them.

However when Mr Justice Kearns proceeded to read out the contents of the certificate and had succeeded in reading the first ailment mentioned there, Justin Morahan intervened to prevent him from reading the certificate in open court There were press representatives present and Kevin Tracey did not wish his medical condition to become public knowledge, he said.This information was private and confidential. Mr Justice Kearns said that the only reporters present were Court reporters and they could be relied on to keep the information confidential. Justin Morahan said that he thought that he had already pointed out to the Court that the detailed information was private and confidential and Kevin Tracey did not wish to have this information relayed in open court. When Mr Justice Kearns said he had to inform the representatives of the State and Courts Service about the information in the certificate Justin Morahan told him that he had already given them their copies.

In the event, no other part of the medical report was read out by Judge Kearns.

UPDATE

As of today, Kevin Tracey remains ill and under his doctor's orders not to engage in litigation until his health improves.

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Comments (14 of 14)

what justice

by Pat Riordan - vulnerable citizens

Mon Mar 28, 2011 11:03

In June of 2010 a friend of mine was arrested and taken to a Dublin Garda Station and held for 8 hrs , he eventually was released without charge pending a file going to the DPP. tHE CHARGES PUT AGAINST HIM are somewhat dubious it involves an argument with a neighbour. The row had no threats no shouting , but it was reported as Harrassment under the Non fatal act. My question is clear my friend was on Doctors medication at the time of his ar time to recoverrest and during the gardai interogation he took 2 of his pills as the tape and camera were on. He also gave the Sergeant that night of his arrest a letter from a consultant stating he should be given time
to recover, I cant understand how the questioning went ahead that night. Many letters have gone out since in this mans defence and not a word back from the gardai. It could go to the high court.
Pat Riordan.

Justice in the Constitution

by Annette Dowling - Legal Profession

Mon Mar 28, 2011 14:23

In my 15 years qualified as a practising solicitor in a country town I have rarely come across this type of cases/s. Please don't get me wrong - I accept what people are writing. I regularly browse through this site and find it most interesting. I would like to get back to the first posting in due course after I do some research. I also would like to applaud Justin Morahan for his commitment and courage in facing up to High Court Judge Kearans. It can be at times intimidating so well done.

The other posting disgusts me. The fact that a man, an Irish citizen, or anybody can be taken in under the Non Fatal Act and questioned for so many hours while he is under a Consultant Psychiatrist (I presume) and a GP. The posting also said that he took his medication while he was in the interview room and at a time when the camera and tape were on. In my legal opinion, this is a blatant abuse of powers and also an infringement on this man's human rights. I am sure he will get legal advice. I find the two postings to be alarming especially in the present climate when the so-called elite appear to be above the Law in Ireland.

Annette Dowling

Paperweight

by Seán Ryan

Mon Mar 28, 2011 16:22

Justice Kearns' logic is a little skewed. On the one hand he says that some of the respondents may well have short memories and on the other, he points out that affidavits may be written on death beds.

The really disgusting part of all of this to me is that fact that Mr Tracey has had each and every one of these respondents in the High Court on many motions, for delaying these proceedings. And in fairness, had these respondents not delayed these matters, without any decent excuse, these cases would have most likely been heard, well before Mr Tracey became ill.

I was the person who initially handed Mr Tracey's letter from the doctor to Justice Kearns. When the judge came to the conclusion, after opposing counsel declared the letter inadequate, that it was inadequate, I pointed out to the Judge that there could only be one conclusion drawn from his ruling: that the doctor's letter was a forgery and I told him that this was very easy to verify and well within his powers to do so. The judge drew another conclusion. He declared that the medical information wasn't detailed enough and that Mr Tracey would have to get a more detailed letter. I commented that adding more ink to paper would hardly make Mr Tracey better any the sooner or available to seek justice any the sooner. Kearns J was having none of it and gave Mr Tracey, via myself, a couple of weeks to procure a report that would in the normal course of events, take months to get.

A qualified doctor has certified Mr Tracey unfit to work and unfit to continue his work in the courts for a very specific time period. Adding more details as to the nature of Mr Tracey's illness will not change this. Does Kearns J. even have the medical qualification to understand the specifics of Mr Tracey's illness, so that he might arrive at a different opinion as to when Mr Tracey might be available to litigate? If it is the case that Justice Kearns is a man of such ability, I'm very sure that Mr Tracey would like the good judge to treat him instead of those who have treated him thus far, so that he might recover all the sooner!

To say that this matter disgusts me is to vastly understate the case.

Another Donegal and Maybe Worse

by Emma

Tue Mar 29, 2011 22:52

The Phoenix carried a piece on this man Kevin Tracey last May.

Behind the normal flippant manner of that publication there is one hell of a story in what has been happening to Mr Tracey. I have spoken to several senior mainstream reporters and the truth of the wider story amounts to the most incredible multi-layered saga of injustice.

But for starters check the Phoenix article, I think it is 21st of May, 2010 and peruse it carefully.

Fair play to Phoenix, they have been the only ones with bottle enough to pin prick this rotten can of worms.

Forger shows up in court with phony doctor note

by Lord Justice Gibson

Thu Mar 31, 2011 13:16

It happens ye know. People send fake certificates to court.

************************************************************
A California woman facing nearly five years in prison for forging drug prescriptions showed up for sentencing with a phony doctor's note seeking a delay in the proceedings.

Michelle Elaine Astumian was free on $45,000 bail and pleaded no contest in January to felony counts of forgery and using a fraudulent check.

The 41-year-old woman arrived Monday for sentencing in a San Luis Obispo County courtroom and presented a note with a doctor's signature asking for a postponement.

Prosecutor Dave Pomeroy called the doctor, who said the note is a forgery.

The judge immediately ordered Astumian into custody and she collapsed to the floor. An ambulance took her to a hospital.

Pomeroy told the San Luis Obispo County Tribune that Astumian will be sentenced later, but he doesn't know when.

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2011/0...4.DTL

Thu Mar 31, 2011 13:20

Kearns J. has said that the authenticity of the the cert was not the issue.

A completely different genre

Sat Apr 02, 2011 14:09

The California case bears very little resemblance to what happened to Kevin Tracey.

Kevin was not a defendant in the ordinary sense as the woman in California was. He was not being charged with an offence.

He was forced into the role of "defendant" because he was suing the State and other very important people for their crimes against him.

Before he could bring them to court (because of his illness) "The State" brought him to court asking the court to strike out all of his six cases for want of prosecution.

Even though his doctor's first certificate said clearly that he was unable to conduct his affairs for 6 months he received a relentless flow of letters and messages from the Courts and the State solicitor telling him to appear in person before Judge Kearns or his cases might fail.

Even though the doctor's second certificate clearly stated that he was unable to work or attend court and listed details of his illness and even though this certificate too was in the hands of Judge Kearns the Judge was not willing to accept the doctor's word.

The Judge did not question the authenticity of the doctor's certificate as Sean has pointed out.

Judge Kearns put his own lay opinion above the professional opinion of a qualified and highly respected GP.

The Judge did not contact the GP, write to him or phone him.

"Lord Justice Gibson"'s comparison is odious. Kevin's case was of a completely different genre.

The injustice is palpable.

Another High Court Judge Accepts Same Certificate?

by Court Observer - Law Society

Tue Apr 12, 2011 23:50

I believe that yesterday 11th April Justice Peter Charleton has accepted the same medical certificate that Judge Nicholas Kearns had rejected. Could anyone confirm if this is true?

Yes, this is true.

Wed Apr 13, 2011 21:50

Court Observer is correct. I handed the same medical certificate to Mr Justice Charleton in Court 7 on Monday 11 April. Justice Charleton was warned by opposing Counsel that this certificate had been rejected by the President Mr Justice Kearns.

But Justice Charleton said that he had no problem with the certificate. He also said that he accepted the confidential nature of its details. Opposing Counsel were asking for an adjournment of two days to today 13 April but the Judge gave them an adjournment instead till 5 May, because, he said, there is a question of illness here.

Natural due Process

by Liam Flannery - Equality

Sat Apr 16, 2011 11:44

I agree to a large degrr to the above postings, but this is Ireland and Judges are politically appointed, there is where the main problem lies. Look back at the bulk of cases before Judge Devins in the Mayo region ie Shell to sea protestors since 2007 married to a Fianna Fail TD at the time legally created a conflict of interest. NOT ONE PERSON CHALLENGED this at the time. The case Annette Dowling refers to I AM TOTALLY AWARE OF IS ALARMING a man taking medications while being questioned at a garda station south city, It is disgraceful humans rights were torn to shreds. A letter from a consultant ignored. This case is going to the High court shortly. Well done Justin for bringing the court to the moral lights.
Flannery

LAW AND gardai Judges

by Sean Fleming - justice

Tue Apr 19, 2011 11:15

I did not think it was legally possible to question any citizen under medication, especially taking the meds while being questioned.
People have legal and medical rights and I want to thank Justin for bringing this importent topic to all our attention.
Sean

Continuous harassment and abuse

by Fred Walsh

Sat Apr 23, 2011 11:01

With regards to Sean Flemings comments I agree. No person on medication should be treated like this. Even in the case of Kevin Treacy reported by Justin Morahan there are many similar instances. On 21st February last Kevin Treacy was arrested without any warrant on a public street and forcibly taken by 2 gardai to a garda station almost 120km away and held for 6 hours. During this time Kevin Treacy was very ill and on medication. He was questioned and forcibly interviewed about further trumped up charges and then thrown out of the station and told to find his own way home. The gardai concerned knew he was ill. Kevin Treacy is fully aware of the particular individual who was behind this.

Outrageous

by INSIDER

Sat Apr 23, 2011 13:29

Apart from Justice Kearns covering up this wrongdoing against Kevin Tracey he did not:

1. Follow the law with regard to striking out cases for want of prosecution. Illness is excusable.

2. All the 6 separate cases taken by Mr Tracey for wrongdoing were not struck out individually. They were struck out under 1 case only, which is illegal. Justice Kearns is aware of this as are the solicitors and barristers acting for the state.

It goes without saying that this man Mr Tracey has been abused by the courts and also that his pleadings are bona-fide.
I understand that he has now appealed the decision of Justice Kearns to the Supreme Court.

I also applaud Justin Morahan for his courage and support given to Mr Tracey. The only way to bring out the truth is to be tenacious.

There was no delay by Mr Tracey in his cases, just look at the George Redmond Case before the courts

by James Coughlan - LSG

Tue Dec 13, 2011 17:54

These cases by Mr Tracey for breathtaking wrongdoing against him and his family were certainly not delayed by him as they were all started recently. In last number of weeks the infamous George Redmond (former city and county manager of Dublin) has submitted a Statement of Claim in a case which he started in 2005 [Irish Daily Mail of 12/12/11]. The court rules state that the Statement of Claim has to be submitted within 21 days. Having checked Mr Tracey's cases nothing at all was delayed by him in his fight to get the justice he so rightly deserves. The striking out of his cases was unfair and unconstitutional and has to be questioned. In having his cases heard Mr Tracey would divulge serious wrongdoing by persons in "high" positions. I am glad to hear that Mr Tracey has appealed these cases to the Supreme Court and beyond if necessary.

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High Court Judge Rejects Medical Certificates For iIl Lay Litigant As Inadequate

Comments (14 of 14)