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R. (Martin) v. Mahony: The History of a Classical Certiorari Authority

2006-12-01, Costello, Kevin

R. (Martin) v Mahony, a decision of the Irish High Court of 1910, continues to be acknowledged by modern textbook writers as a leading authority for the classical rule that certiorari could not correct error of law. This rule, which considerably reduced judicial superintendence of magistrates' courts, had been established by the English court of Queen's Bench in the 1840s. However, the rule was repudiated by the Exchequer Division in Ireland in the late 1880s, which developed a novel, liberal theory of certiorari. This doctrinal innovation, which was used in overturning convictions under the anti-boycotting statute, the Criminal Law and Procedure Act 1887, appalled sections of Lord Salisbury's government, was disapproved of by the English courts, and split the Irish judiciary. The division caused by the doctrine persisted until 1910 when the Irish High Court, having assembled in banc in Martin's Case in order to resolve the impasse, re-established orthodox English doctrine.

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The Irish Shopkeeper and the Law of Bankruptcy 1860-1930

2016-12, Costello, Kevin

Consumerism and shop going—products of urbanisation and of the expansion of the cash economy—surged in post-famine Ireland. This development enabled changes in consumption patterns. A greater number of Irish people had access to the pleasures of tea, sugar, mass-produced beer and fashionable factory-produced clothes. Villages and towns were brightened by a doubling in the number of shops. An incident of the rise of shops was, of course, a rise in the number of shopkeepers. By the mid-nineteenth century the number of persons whose occupation was described as shopkeeper had increased from 61 per 10,000 to 132 per 10,000 in the population; between 1881 and 1901 there was a 25 per cent increase in the number of shopkeepers trading in Ireland

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Habeas Corpus and Military and Naval Impressment, 1756-1816

2008-07-07, Costello, Kevin

At the start of the Seven Years War in 1756, there occurred an unexpected increase in the demand by impressed soldiers and sailors for habeas corpus. This increased usage occurred in spite of the fact that habeas corpus was a deficient mechanism of judicial review: the scope of review was limited to formal defects appearing on the face of the return; it was unclear whether there was jurisdiction to issue the writ during the extensive times that the court was out of term; and there was no power to issue process of contempt in vacation for disobedience of the writ. Notwithstanding these defects (and the rejection by the House of Lords in 1758 of a habeas corpus bill drafted in order to remedy those faults) the custom of using habeas corpus as an anti-impressment remedy flourished within the navy (and, during the short periods of statutory military conscription, within the army); in the late eighteenth century it was impressed sailors who made up the largest constituency using the writ. This account describes the scope of review and procedure regulating impressment-related habeas corpus.

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The writ of certiorari and review of summary criminal convictions, 1660-1848

2012-07, Costello, Kevin

Judicial review now accounts for over one third of the applications submitted to the Queen’s Bench Division. Judicial review has ascended to this point of high prominence over the course of a four hundred year history. That history is the story of the progress since the sixteenth century of the prerogative writs – particularly certiorari and mandamus. Of these prerogative writs, it is certiorari which has the closest connection with the modern process of judicial review. In the early part of its history, from the seventeenth century to the end of the eighteenth century, the writ issued against a wide range of orders made by justices of the peace and specialist agencies like commissioners of sewers. The particular focus of this study is upon its use as a means of invalidating summary convictions.

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Edwards v Chesterfield Royal Hospital - Parliamentary Intention and Damages Caused by Maladministration of a Contractual Dismissal Procedure

2013-01-02, Costello, Kevin

In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58 [2012] 2 W.L.R. 55 the Supreme Court addressed the following question: is an employee, who can establish that (a) if a contractual disciplinary process had been correctly administered he would have been exonerated, and (b) thereafter employed until retirement, able to sue for loss of the earnings that he would have acquired until retirement? Three members of the Supreme Court held that such a remedy was not reconcilable with the enactment, originally in the Industrial Relations Act 1971, of a statutory unfair dismissals protection regime. It was Parliament's intention that an employee should not be able to outmanoeuvre the statute's compensation limitation rules by deploying a superior common law remedy. This note considers that reading of Parliament's intention.