Brian Lenihan Jnr (Dublin West, Fianna Fail)

I have perused the judgment of the Supreme Court and in no sense did it suggest any fundamental reason for so deciding other than that the rules of court provide that where no procedure is prescribed the procedure by way of plenary summons applies. The Supreme Court did not suggest there is a fundamental reason we must have the plenary procedure other than that the fact that the rules of court had not provided for any other procedure. It is important to realise that order 1, rule 6 of the rules of the superior courts mandates the use of the plenary summons procedure in all instances where there is no other procedure specified. Frequently another procedure is specified under legislation or under the rules of court. If we used the words "in a summary manner" in legislation for the jurisdiction of the High Court, the procedure by way of special or summary summons will apply.

In this instance, no procedure was specified in the legislation and, therefore, the residual hold-all section of the rules came into force. The Supreme Court is stating that if there is no express provision in the Act as it stands, we are obliged to provide the rules which state that this is the form of procedure for this type of application where nothing else is provided. The Supreme Court did not state there is anything more fundamental than that in arriving at its conclusion.