The High Court has begun hearing a bid by two Wicklow county councillors to restrain a decision of the Wicklow county manager that they are disqualified from acting as councillors because of their failure to pay costs of unsuccessful legal proceedings.
Tommy Cullen, Deerpark, Blessington, and Pat Doran, Carnew, say they were elected to the council at the local elections of June 2004 and remain councillors.
However, they were told last month, arising from the failure to pay legal costs of €184,000 arising from unsuccessful court proceedings against the county manager, they were deemed disqualified from membership of a local authority.
In proceedings against the Wicklow county manager and the State, the councillors are seeking an injunction restraining any disqualification pending the outcome of their legal action. They are also seeking a declaration that they do not stand disqualified as councillors on a proper construction of the legislation.
The court's decision will affect whether they can vote in the upcoming Seanad elections. Ballot papers in that poll have to be returned by July 24th.
Opening the case yesterday, Gerard Hogan SC for the councillors, said an appeal against the costs judgment is pending in the Supreme Court. That court had also placed a stay on the costs order pending determination of the appeal.
The defence argument was that the two councillors had been disqualified as a matter of law since 2006. Under the law a councillor can be disqualified if he fails to comply with a final judgment of a court for payment of any money due to a local authority.
In this situation, the appeal process was not exhausted and there was a stay in place. If the councillors succeeded in their Supreme Court case, this could result in a ludicrous situation where they found themselves disqualified for five years even though they had won.
Any law which can disqualify a member of the local authority must be given a high level of scrutiny by the court, counsel said.
Mr Hogan asked Ms Justice Mary Laffoy for a decision before tomorrow. He said the councillors could vote first thing on Monday morning at a special box in Government Buildings and still be in time for the Seanad elections.
The proceedings arise from an unsuccessful action initiated in 2000 against the county manager aimed at reversing his decision to grant permission for the conversion of a milking parlour for use as a pet crematorium.
Mr Cullen, Mr Doran and a third councillor, Mr Nicky Kelly, were subsequently ordered to pay costs arising from the proceedings. Mr Cullen and Mr Doran claim the action over the crematorium was brought on a vote of the council in 2000.
They claim the certificate of taxation of the legal costs was issued in December 2006 but not served on them until June last. On June 11th, they say that, when they arrived at the weekly council meeting, they were handed a letter which stated that the costs amount of €184,958 was payable by them and Mr Kelly.
The letter also stated that, under the relevant provisions of the Local Government Act 2001, that a person is disqualified from being elected or co-opted on to a local authority if they fail to comply with a "final judgment" or decree of a court.
It was also stated that disqualification comes into effect on the seventh day after the last day for compliance with the final judgment. On June 21st, payment of the costs amount was demanded within seven days, the plaintiffs say. They had applied to the Supreme Court for a stay on the costs order.
The hearing continues today.