Civil Justice I
Cases
Gorman v Minister for Justice, Equality and Law Reform
[2015] IECA 41
JUDGMENT of the Court delivered on the 3rd March 2015by Ms Justice Mary Irvine
1. This an appeal against the judgment and order of the High Court (Hedigan J.) delivered on 10th July 2012 whereby he dismissed the plaintiff’s claim for want of prosecution and on the grounds of inordinate and inexcusable delay.
Relevant background facts
2. By plenary summons issued on 29th January 2003 the plaintiff commenced proceedings in the High Court seeking damages from the defendants in respect of acts of assault, battery and false imprisonment which are alleged to have taken place at Dundalk Garda Station on 15th January 2001.
3. In his statement of claim delivered on 10th February 2003 the plaintiff pleaded that whilst in a cell in the station he was viciously attacked by three members of the Gardaí who beat him around the body with batons and kicked him while he lay on the ground. As a result he maintains that he was extremely shocked and suffered severe bruising all over his body.
4. A defence was delivered on 17th July 2003 wherein the defendants maintained that at all material times the plaintiff had been held in lawful custody. They denied all allegations of assault, negligence and impropriety and pleaded that any injuries he sustained were as a result of his intoxication, his failure to cooperate and the fact that he repeatedly assaulted members of An Garda Síochána.
5. The notice of trial was served in the proceedings on 30th September 2003. This was later struck out due to non attendance on 18th January 2005.
6. By letter of 8th October 2003 the defendants raised particulars arising from the statement of claim. This notice was replied to on 9th January 2004.
7. Voluntary discovery was sought from the defendants in October 2003. In May 2004 the Master made an order for discovery and the defendants complied with that order in May 2005.
8. On the 2nd March 2004 a supplemental notice for particulars was raised by the defendants. This was replied to on 20th march 2012.
9. On 22 March 2004 particulars were sought by the plaintiff solicitors arising from the defence and these were replied to on the 30th November 2005.
10. On 4th May 2004 the defendants were ordered to make discovery. A draft affidavit of discovery was delivered in November 2004 and the sworn affidavit on 6th May 2005.
11. On the 30th Nov 2005 the defendants sought discovery of the plaintiffs GP records and his hospital admission records held in Louth Co Hospital. The hospital records were furnished on the 18th May 2006.
12. It was intended that the defendants would have the plaintiff medically examined on 18th October 2005. That appointment was cancelled as the particulars of injury sought by letter dated 22nd March 2004 and the plaintiff’s medical records had not yet been furnished.
13. On 12th October 2011, the defendants were requested to agree to the reinstatement of the Notice of trial. They refused and that refusal spawned two court applications; the first an application by the Plaintiff to reinstate the Notice of trial and the second a motion issued by the defendants to dismiss the claim for want of prosecution and further on the grounds of inordinate and inexcusable delay.
14. Both motions were listed for hearing before Hedigan J. on 10th July 2012.
Judgment of High Court
15. Having considered the principles to be applied on such an application, which were agreed between the parties, the High Court judge dismissed the proceedings. He reached the following conclusions, namely:-.
i. that the delay in the prosecution of the proceedings had been both inordinate and inexcusable,
ii. that any lack of cooperation on the part of the defendants in furnishing a copy of a video which they had sought ought to have been remedied by court application,
iii. the fact that eleven and a half years had passed since the events in question was unacceptable in such a straightforward action,
iv. that the balance of justice favoured dismissal. The case would not be heard until 2013, by then regardless of the existence of witness statements, prejudicial delay was inevitable,
v. That while the claim involved a grave allegation with a public interest dimension, that such interest would have somewhat diminished over the years.
Submissions on behalf of the plaintiff /appellant
16. Insofar as the delay prior to November 2005 was concerned, counsel for the plaintiff maintained that this could not be attributed to the plaintiff as the defendants had delayed in complying with an order for discovery that had been made in May 2004. The sworn affidavit was not delivered until 26th May 2005.
17. As to the delay post November 2005, counsel submitted that there was ongoing correspondence between the parties mostly in relation to a videotape which the plaintiff’s legal advisers felt was a material proof required to advance the claim. This was not a case where the plaintiff’s solicitors had been idle for any extended period. There was extensive correspondence concerning the videotape evidencing the plaintiff’s clear intention of advancing his claim.
18. Counsel submitted that even if the trial judge was entitled to find that the delay had been inordinate and inexcusable, he should nonetheless, have concluded that the balance of justice favoured allowing the action proceed for the following reasons, :-
i. the allegations the subject matter of the claim were grave and there was a public interest in having such serious allegations fully investigated,
ii. the plaintiff had no alternative remedy,
iii. the defendants had not been able to point to any specific prejudice arising from the delay and they had a number of contemporaneous witness statements in relation to the events in question,
iv. there was no period of complete inactivity such that the defendants might have been lulled into believing that the plaintiff was not proceeding with his claim,
v. the conduct of the defendants was not without fault. They had been guilty of delay in dealing with the plaintiff’s solicitors requests in relation to the videotape in a timely manner and had generated some delay in furnishing discovery,
vi. there had been no complaint from the defendant’s solicitor urging expedition or warning that any prejudice was emerging due to the rate at which the proceedings were advancing.
The submission of the defendants/respondents
19. Counsel for the defendants submitted that the trial judge had correctly concluded that the plaintiff’s delay had been inexcusable. This, he reminded the court, had been accepted by the plaintiff in the court below. The claim was, as was stated by the High Court judge, not a complex one and should have been capable of being advanced to trial in a modest time frame.
20. Counsel submitted that the judge had correctly concluded that the unavailability of a readable copy of the video tape sought by the plaintiff’s solicitor afforded no valid excuse for the delay. Further he maintained that the claim could have proceeded in its absence as the wrongdoing the subject matter of the claim is all alleged to have taken place in a Garda cell and the video relates to events prior to the plaintiff’s arrest at or near MacDonald’s takeaway restaurant in Dundalk. Accordingly, the content of the video could never be determinative of the liability issue. Further, the plaintiff had not acted with any degree of expedition in seeking to obtain the videotape and could have made a court application if satisfied that the defendants were in breach of their obligations.
21. As to whether the balance of justice was correctly assessed by the High Court judge, counsel submitted that the judge’s approach could not be faulted. Counsel agreed with his finding that delay of the type that had occurred in this case was bound to be prejudicial regardless of the absence of any identifiable or specific prejudice. The existence of witness statements did not negate that type of general prejudice. A jury should not, he submitted, be asked to decide between two different accounts of what had happened 10 years previously.
22. As to the conduct of the defendants, the fact that the defendants had engaged in a significant amount of correspondence with the plaintiff solicitors over the years did not disentitle them to bring the appropriate application. They were not obligated to write warning letters complaining of delay and had every entitlement to move to have the claim dismissed.
23. Counsel submitted that the High Court judge had correctly applied the relevant principles and was correct in the decision he made having regard to the provisions of Article 6.1 of the European Convention on Human Rights. He further stressed the Constitutional right of his clients to have their good name cleared and that because of what was at stake for both parties there was a special onus on the court to make sure that cases of this nature were heard expeditiously.
24. Finally, Counsel submitted that, without seeking to minimise the gravity of any unlawful assault, another factor to be taken into account by the court when assessing where the balance of justice lay was the seriousness of the injury contended for. In this regard and on the plaintiff’s own pleadings his injuries were relatively modest. To the defendants knowledge treatment he received was in the immediate aftermath of the events in question.
Principles to be applied
25. The principles which govern the circumstances in which proceedings may be struck out for delay are set out in some detail by Finlay P. in Rainsford. These were later approved of by the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 499 where Hamilton C.J. stated as follows: –
“The principles of law relevant to the consideration of the issues raised on this appeal may be summarised as follows: –
(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgement on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case I such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant – because litigation is a two-party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the way to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in(vi) may arise in many ways and be other than that merely caused by the delay, including damage to defendant’s reputation and business.”
26. These being the relevant principles, it is important also to note, as was stated by Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561, that the onus of proof on an application to dismiss a claim on the grounds of inordinate and inexcusable lies on the party who seeks that relief.
27. The rationale behind the court’s jurisdiction to dismiss a claim on the grounds of delay is that, as was stated by Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Limited [1968] 2 Q.B. 229 at p254:-
“The chances of the courts been able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard.”
28. In considering whether or not the delay has been inordinate the court may also have regard to any significant delay prior to the issue of the proceedings: see Cahalane and another v. Revenue Commissioners and others [2010] IEHC95 and McBrearty v. North Western Health Board [2010] IESC27. However, given that this is assault action to which a six year limitation period applies, this principle is not of relevance to the present case.
29. In addition to its right to dismiss a claim on the grounds of inordinate and inexcusable delay, there is also what was described by Geoghegan J. in McBrearty .v. North Western Health Board [2010] IESC 27, a jurisdiction which permits the court to dismiss a claim, even where there has been no fault on the part of the plaintiff, if satisfied that the interests of justice would require such an approach. This jurisdiction was first considered in detail by the Supreme Court in O’Domhnaill v. Merrick [1984] I.R. 151 where Henchy J. expressed himself satisfied that a court might dismiss an action if it was satisfied that to ask the defendant to defend the action would place that defendant under an inexcusable and unfair burden. However, as this is not the basis upon which the defendants’ application to dismiss was based, there is no need to consider further the circumstances in which this type of jurisdiction may be exercised.
30. In recent times, the constitutional imperative to bring to an end a culture of delay in litigation so as to ensure the effective administration of justice and basic fairness of procedures, has been emphasised in a number of judgments dealing with delay. The relevant constitutional provisions are contained in Article 34.1, which requires the courts to administer justice and Article 40.3.2 which guarantees the citizen the right to protect their good name.
31. These specific constitutional obligations pre-suppose that litigation will be conducted in a timely fashion. If, as Henchy J. stated in O’Domhnaill, justice is put to the hazard as a result of undue and excessive delay, how then can the courts fulfil their constitutional mandate under Article 34.1? Moreover, where, as in the present case, the right to a good name of a number of members of An Garda Síochána, has been put at issue by the plaintiff, the effective protection of that right as guaranteed by Article 40.3.2 requires that such claims be adjudicated upon within a reasonable time.
32. These views have been consistently expressed in recent times. Thus in Quinn v Faulkner t/a Faulkner’s Garage and another [2011] IEHC 103 Hogan J. criticised the courts’ prior tolerance to inactivity on the part of litigants when he stated:-
“While as Charlton J. pointed out in Kelly v. Doyle [2010] IEHC 396 it would be wrong for the court to strike out proceedings because of judicial disapproval, it must also be acknowledged that experience has also shown that the courts must also become more pro-active in terms of undue delay, since past judicial practices which had tolerated such inactivity on the part of litigants and which led to a culture of almost “endless indulgence” towards such delays led in turn to a situation where inordinate delay was all too common: see, e.g., the comments of Hardiman J. in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290 and those of Clarke J. in Rodenhuis and Verloop BV v. HDS Energy Limited [2010] IEHC465.”
33. Further, as Hedigan J, himself stated in the course of his judgment, in recent times Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms has been considered to be material to the courts conclusions on an application such as that under consideration.
34. Similar sentiments were expressed by Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 where at pp.293-294 he stated as follows:-
“[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attached to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued ….[F]ollowing such cases as McMullan v. Ireland [ECHR422 97/98 29th July 2004] and the European Convention on Human Rights Act 2003, the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.”
35. In Michael McGrath v. Irish Ispat Limited [2006] IESC 43, Denham J. considered the extent to which the Primor principles might need revision in light of the Convention and concluded that the court’s discretion to decide whether it was in the interests of justice that a claim be dismissed for want of prosecution was to be exercised both in accordance with settled constitutional principles and “in light of developing European jurisprudence on reasonable time”.
36. In his judgments in Stephens v. Paul Flynn [2005] IEHC148 and Rodenhuis & Verloop BV v. HDS Energy Ltd [2011] 1.I.R. 611, Clarke J. also questioned whether there should be a recalibration or tightening up of the criteria by reference to which the actions of the parties might be judged. He stated that while the overall test and applicable principles remain the same, the application of those principles might require some typing up to avoid excessive indulgence: At para.11 of his judgment he advised as follows:-
“It is necessary, in a system where the initiative has left largely up to the parties to progress proceedings, for the courts to make clear that there will not be an excessive indulgence of delay, because of the courts do not make that clear, it follows that the courts actions will encourage delay and, thus, will encourage a situation of cases will not be completed within the sort of times which would be consistent with compliance with Ireland’s obligations under the European convention on human rights.”
37. In McMullen, the court when considering a sixteen year delay in the context of Article 6. 1 of the Convention gave some guidance as to what might be considered to be reasonable in terms of the duration of proceedings when it concluded that:-
(i) Legal proceedings for determination of civil rights and obligations should be resolved within a reasonable time.
(ii) Reasonableness is to be assessed by reference to the circumstances of the case, its complexity, the conduct of the applicant and of the relevant authorities and the importance of what is at stake.
(iii) The State is obliged to organise its legal system to comply with the reasonable time requirement of Article 6.
38. The guidance from the European Court of Human Rights is clearly to the effect that the Irish courts are under a convention based obligation to ensure that proceedings, including civil proceedings are concluded within a reasonable time. This means that the Irish courts must be vigilant about culpable delay and when faced with an application to dismiss a claim on the grounds of delay, should factor into its considerations Ireland’s obligations under Article 6 of the Convention.
The Appellate Jurisdiction of the Court of Appeal
39. The first matter to be considered on this appeal is the approach to be adopted by this court when dealing with an appeal against of a decision of a High Court judge made in the exercise of his or her discretion. This issue was considered at some length by this court in its recent decision in Collins v. Minister for Justice, Equality and Law Reform Ireland and The Attorney General [unreported 19th February 2015], another case in which the court was asked to dismiss proceedings on the grounds of inordinate and inexcusable delay.
40. Following a consideration of a long line of authorities in which somewhat divergent views as to the court’s jurisdiction on such an appeal had been expressed, this Court concluded that the judgement of McMenamin J. in Lismore Builders (in Receivership) .v. Bank of Ireland Finance Ltd. [2013] IESC 6 correctly described the circumstances in which an appellate court may review an order made by a High Court judge in the exercise of their discretion. At page … he stated as follows:-
“Although great deference will normally be granted to the views of the trial judge, this court retains the jurisdiction of exercising its discretion in a different manner in an appropriate case. This is especially so, of course, in the event there are errors detectable in the approach adopted in the High Court. The interests of justice are fundamental. This is clear from the judgement of Geoghegan J. in Desmond v. MGN Ltd. 2009 1 IR 737.”
41. In Desmond, Geoghegan J, expressed concern about the more traditional view that a discretionary order should not be interfered with by an appellate court unless the judge at first instance made an error of law in the exercise of that discretion. Such a restriction, he pointed out could have a very significant impact on orders involving substantive rights. At page (to be completed) he stated as follows: –
“The expression “discretionary order” can cover a huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including mundane day-to-day procedural orders such as orders for adjournments et cetera. I think in reality over the years since Morelli this court has exercised commonsense in relation to that issue. The court would be very slow indeed to interfere with the High Court judge’s management of his or her list, but in a case such as this particular case were much more substantial issues are at stake for the court, while having respect for the view of the High Court judge, must seriously consider whether in all the circumstances and in the interests of justice it should really exercise the discretion in different direction”
42. In Collins the court considered the nature of an application to dismiss proceedings on the grounds of inordinate and inexcusable delay and concluded that such applications required the presiding judge to decide mixed questions of law and fact rather than questions which might be considered to be truly discretionary. It also expressed itself satisfied that in circumstances were applications of this nature were determined by reference to facts which were fully set out on affidavit that it was difficult to advance any valid reason as to why the merits of the High Court decision on such an issue should not be fully reconsidered on an appeal, should be interests of justice so required.
43. It follows that on this appeal the Court, while obliged to give due consideration to the conclusions of the High Court judge is nonetheless entitled to decide, should the interests of justice so dictate, to exercise its own discretion as to whether or not this claim should be dismissed on the grounds of inordinate and inexcusable delay.
Decision
44. Having considered the evidence that was before the High Court and the submissions made on behalf on the parties on this appeal, the Court is satisfied that the defendants have discharged the burden of proof and have established to the satisfaction of this Court that the plaintiff has been guilty of inordinate and inexcusable delay.
45. As the plaintiff in the course of the hearing of this appeal ultimately conceded that the delay had been inordinate, it is not necessary to consider that aspect of the case further. Suffice to say that it is difficult to envisage how an assault action commenced in January 2003 could still be in some type of extended gestation process almost ten years later, that being the point at which the defendants moved to strike out the claim.
46. In considering whether delay is excusable, one of the factors material to the court’s consideration is the complexity of the case. Here we have what was correctly described by the High Court judge as the simplest of cases. The claim concerns a factual dispute between the parties as to whether or not the plaintiff was assaulted on a particular day. That issue will be resolved by reference to the plaintiff’s own oral testimony and the evidence of the witnesses called by the defendants. This is not a case in which delay has arisen due to any difficulty in identifying the names and later tracing the whereabouts of potentially valuable witnesses. Further, this is not the type of action where the plaintiff’s solicitor, as often happens in personal injuries cases, has had to engage experts to advise on complex liability or causation issues.
47. The only other issue in the proceedings is the extent of any injuries sustained by the plaintiff. As to such injuries, it appears that the Plaintiff was seen at the Accident and Emergency Department of Louth County Hospital on the day of the alleged assault. In his replies to particulars delivered on the 9th Jan 2004, the plaintiff advised that the only medical treatment he received was from his general practitioner whom he attended on four or five occasions . He did not require specialist intervention and no consultant was apparently engaged for the purposes of providing expert testimony. Given the fact that the plaintiff’s medical condition and prognosis appears to have been ascertained with some certainty within months of his assault, there is no reason why this jury action was not pushed on for trial with due expedition. In fact, a notice of trial was initially served as early as 13th November 2003 and a request made in January 2004 that the defendants would make an offer in settlement of the plaintiffs claim. It would thus appear that, from a damages perspective at least, the case was ready for trial, in 2004.
48. This Court rejects the submission advanced on the plaintiff’s behalf that the delay in the prosecuting of the proceedings can be excused by reason of the defendant’s alleged failure to provide a copy of a video tape capturing the plaintiff’s attendance at McDonalds take away restaurant, Dundalk, on the day of his arrest.
49. It is not immediately clear as to why this video tape is of significance to the liability issue in the proceedings as all of the allegations against the defendants relates to events which are alleged to have taken place while the plaintiff was in custody in the Garda Station. However, having decided that it was necessary, it is quite difficult to understand as to why, the first request for a copy having been made on 22nd November 2004, the plaintiff had not obtained a readable copy of the video tape seven years later, that being the point at which the defendants moved to have the proceedings dismissed on the grounds of delay.
50. The defendants cooperated with the plaintiffs request for a copy of this video tape, albeit somewhat tardily. Having received a copy of the tape, on 2nd September 2005, the plaintiff’s solicitor wrote to the defendants to advise that the video that had been forwarded was not the correct one as, having viewed the video, the plaintiff was not to be seen on that particular recording. On 13th September 2005 the defendants requested the return of the video to check its contents. The video tape was not returned.
51. Six months later, on 18th May 2006, the plaintiff’s solicitors wrote to his counterpart seeking a response to his earlier letter. The defendants did not reply. One might have thought at that stage a court application for further discovery or inspection was warranted but no such application was made. In fact nothing at all was done to pursue a copy of the video tape over the following two and a half years. When considered against the backdrop of an assault alleged to have taken place in January 2001, eight years earlier, this further two and a half years delay is difficult to comprehend.
52. A letter sent on 22nd August 2008 was the start of a burst of activity on the part of the plaintiff’s legal advisers directed towards obtaining a copy of the correct video tape. In particular, in December 2008 a number of telephone calls were made to the Chief State Solicitor’s office seeking to clarify the position regarding the video tape. While it might be contended that the plaintiff’s solicitors were merely showing marked tolerance to delays on the defendant’s side, the fact of the matter is that there then followed another 11 month period during which the issue was allowed go cold once again.
53. A further letter and telephone call in November 2009 did not achieve a resolution of the issue and the question of the pursuit of the video tape was not re-activated until late 2010. It was only on 11th November 2010, more than five years after the first request for sight of the video tape, that the plaintiff obtained the second copy of the video tape.
54. Unfortunately, the plaintiff’s solicitor found that second video tape to be unreadable and advised the defendant’s solicitor of this fact by letter of 30th November 2010. The defendants in reply sought the return of that copy and, finally, six month later wrote again to the plaintiff’s solicitor advising that the relevant footage was to be found one hour and thirteen minutes into the recording. That was the state of play regarding the video tape at the time the defendants moved to dismiss the proceedings.
55. The Court is satisfied from a consideration of the affidavit evidence that the delay over the six year period last mentioned was inexcusable. From the correspondence it cannot be said that the plaintiff’s solicitor had become diverted in any way by the emergence of other complexities in this litigation. If the video tape was the only piece of evidence holding up the proceedings it should have been pursued with diligence. At the time the first copy was furnished by the defendants in September 2005 almost four years had elapsed since the events which are the subject matters of the proceedings. Further, the delay in obtaining the video tape cannot be ascribed to any obstruction on the part of the defendants. They actually sent two copies of what they considered to be the relevant CCTV footage to the plaintiff’s solicitor. The first was sent in September 2005 and the second in November 2010.
56. The Court is quite satisfied that if the issue of the video tape had been pursued in a purposeful fashion it could have been obtained, at worst , within a period of six to nine months. It follows that the delay in the prosecuting of these proceedings cannot be excused by reference to the engagement between the parties regarding the video tape. If requests and correspondence were ignored or long fingered then further warning letters should have been sent after which, if a readable copy of the video tape had not been forthcoming, the plaintiff should have called in aid the rules of court to secure its production.
Balance of justice
57. Having concluded that the delay in the present proceedings was both inordinate and inexcusable, the Court must now consider all of the factors which are relevant to determining where the balance of justice lies; whether it lies in favour or against allowing the proceedings advance to trial.
58. In determining where the balance of justice lies it is, of course, of particular importance to have regard to the fact that the allegations upon which the claim is founded are extremely grave. An allegation of a brutal assault allegedly perpetrated by members of An Gardai Síochána, the authority charged with upholding and protecting the rights of citizens in the State, ought to be investigated and dealt with expeditiously. Clearly, the public interest is best protected by the earliest possible appraisal of the truth or otherwise of such a serious complaint. It is nevertheless not in the public interest that such an important allegation be resolved in circumstances where, by reason of the passage of time, there is a real possibility of an unjust and unsatisfactory outcome.
59. One of the questions that the court is obliged to consider when dealing with the balance of convenience, as per the decision of the Supreme Court in Primor, is whether or not the defendant has been prejudiced as a consequence of the delay complained of. In this regard Kearns J, in delivering the judgment of the court in Stephens .v. Flynn Ltd [2008] IESC 4 seems to have accepted that the defendant need only to establish moderate prejudice arising from the delay as justification for the dismissal of an action. In the following brief passage he summarised the findings that had been made by Clarke J. in the court below:
“in considering where the balance of justice lay, he concluded that there had been a very significant delay. Not only had the plaintiff failed to render that delay excusable, he had failed to do so by a significant margin. He also concluded that the defendant, were he to be compelled to meet the case, would suffer prejudice, although he did not place that prejudice at a higher degree than moderate. He also held that there was no significant delay on the part of the defendant in exercising his right to apply for the dismissal of the action for want of prosecution.”
60. This Court is satisfied that if this historic claim were to be permitted to proceed to trial, that the defendants would likely suffer general prejudice over and beyond what might be described as moderate, even though they have not been in a position to contend for any specific prejudice as might often arise in proceedings where, by reason of the passage of time, essential witness or documents are no longer available.
61. The fact that the defendants have available to them a number of witness statements taken in the aftermath of the plaintiff’s allegations, does not mean that they would not be prejudiced in meeting a claim of this nature some twelve or more years after the events in question, 2013 being the year in which the learned High Court judge concluded the case was likely to be heard.
62. While such statements would of course assist their authors to refresh their memories of the events recorded, it is inevitable that in the course of the trial evidence would be led or allegations made concerning circumstances not captured in those documents. In that event the defendants’ witnesses might not be in a position to answer or challenge such allegations. Anything which goes beyond that referred to in the witness statements would likely pose problems of a type that would not have been encountered had the action been determined while matters remained reasonably fresh within the minds of those concerned. In this regard this court agrees with the conclusions of the High Court judge when he stated that he was in no doubt that the delay would have impacted upon the defendant’s ability to test the veracity of the claim. As Finlay Geoghegan J. said in Manning v. Benson & Hedges Ltd. [2005] 1 I.L.R.M. 180, 208:
“Delays of four to five years as a matter of probability will reduce the potential of such witnesses to give meaningful assistance or to act as a witness.”
Regardless of the integrity of witnesses, it is an undeniable fact that the greater the lapse of time between the event in question and the hearing of the claim the more fragile and unreliable the evidence becomes. This is of particular concern in cases where there is no documentary or other objective evidence to support a claim where there is conflicting oral testimony. As has been stated so often on applications such as the present one, memories fade and justice is put to the hazard.
63. Another factor that the court is entitled to take into account when considering the balance of justice in proceedings claiming damages for assault or personal injuries negligently inflicted is the seriousness of the injuries allegedly sustained. That is not to minimise the significance of any injury deliberately inflicted on a citizen by a member of An Garda Síochána.
64. If, for example, the plaintiff was maintaining that as a result of the assault he would never work again or would in some other way be permanently incapacitated, then the court would have to weigh those factors in the balance. However, the injuries he complains of are confined to bruising from which, according to the pleadings and particulars, he has made a complete recovery. In these circumstances, there is less of a concern that justice will be undermined by the dismissal of the proceedings.
65. Yet another reason for requiring that claims involving modest injuries be dealt with expeditiously is that even after a relatively short delay the assessment of the validity and extent of such a claim becomes more difficult. The same risk of prejudice does not generally arise in cases where the injuries sustained are very severe. In those latter types of cases the injuries will often be readily apparent upon a medical examination carried out several years after they were sustained. Not only will the defendant have available to it, for the purpose of dealing with the issues of causation and quantum, the type of objective evidence to be found in medical records such as x rays, scans, test results etc., but these will also be available, if relevant, to guide a judge or jury to a just and fair result. Where, as here, however, the claim is for far more moderate injuries which have no longer term consequences, then there is all the greater need for expedition, precisely because the adverse impacts of such injuries may fade and disappear relatively quickly
66. Also relevant to the court’s decision as to where the balance of justice lies is the conduct of the defendants and the extent to which they themselves have been guilty of delay, have acquiesced in the plaintiffs delay or have implicitly encouraged the plaintiff to incur further expense in pursing the claim. In this regard, the court will distinguish between delay or acquiescence on the part of a defendant from delay which might be considered culpable, as was stated by Fennelly J. in Anglo Irish Beef Processors Limited v. Montgomery[2002] 3 IR 510.
67. On the facts of this case the Court is satisfied that the defendants have not been guilty of what might be described as culpable delay. The defendants’ defence was delivered promptly and followed up by two entirely appropriate and prompt letters/notices for particulars delivered on 8th October 2013 and 22nd March 2004 respectively.
68. The defendants were, however, guilty of delay in complying with an order for discovery made in favour of the plaintiff on 4th May 2004. The defendants were obliged to deliver their discovery affidavit within six weeks. A draft affidavit was provided five months after the order was made and the sworn affidavit only delivered in May 2005. However, the period of delay between the delivery of the draft affidavit and the sworn affidavit does not appear to have prejudiced the plaintiff in his ability to advance the action in that his solicitors by letter dated 22nd November 2004 request a copy of the video tape and the photographs referred to in the draft affidavit of discovery. Accordingly, the Court is satisfied that the plaintiff did not suffer any significant prejudice as a result of the late delivery of the sworn affidavit.
69. Earlier in this judgment the Court dealt with the delay stemming from the tardy approach of the parties to the issue of the video tape which was first sought by the plaintiff’s solicitors in late 2004. In the context of considering whether the defendants are any way culpable in respect of this delay from 2004- 2011, that being the period in respect of which the parties were engaged upon the issue, the court has already stated that it is satisfied that the primary responsibility for moving the case forward during that period rested with the plaintiff and that it was his conduct – rather than any default or obstruction on the part of the defendants – which was responsible for that delay.
70. The court has also considered whether it would be unjust, by reason of the defendant’s actions, to dismiss the proceedings at this stage. Relevant to this consideration is the fact that the defendants did not impose any significant financial, personal or other burdensome obligation on the plaintiff in the course of defending their position. The standard notices for particulars were served and the discovery sought was restricted to the plaintiff’s hospital admission and general practitioner records. The former were delivered on 18th May 2006. The latter were never provided, possibly due to the death of his general practitioner. Further, the defendants did not put the plaintiff to the inconvenience of being medically examined, as had been intended, due to the fact that his medical records and updated particulars of personal injury had not been furnished as of the date when that examination was planned.
71. The not insignificant correspondence exhibited on the present application would tend to support the plaintiff’s submission that the defendants could never have doubted the plaintiff’s intention to pursue his case. Several letters contain statements to the effect that the plaintiff was anxious to have his claim dealt with. However, neither can it be stated that the defendants did anything to indicate that they were excusing the plaintiff’s delay in advancing his claim. Their conduct was not such that, when they considered the claim was heading into the realms of antiquity, they should be debarred from complaining of the injustice of being asked to defend an action which had been delayed for such an extensive period.
72. The Court is also satisfied that the fact that the defendants only moved to dismiss the claim when the plaintiff sought their consent to the reinstatement of the notice of trial does not in itself afford any ground for valid complaint. It is precisely when a step such as that is taken that a defendant is most likely review the consequences of the reinstatement of such notice and if satisfied as to the unfairness and the possibility of an injustice will bring forward motion to dismiss the claim.
73. In terms of looking at where the balance of justice lies in this case it is important to recognise that in dismissing this plaintiff’s claim the decision of the High Court have the effect of ending his constitutional right of access to the courts. However that is not an unqualified right and is one which must be balanced against the right of the defendants to protect their good name as is their entitlement under Article 40.3.2 of the Constitution. These constitutional obligations presuppose that litigation will be conducted in a timely fashion. Nobody against whom serious allegations of the nature at the heart of these proceedings are made, particularly where their professional standing is at stake, should have to wait 12 or 13 years before being afforded opportunity to clear their good name.
74. This Court is not only satisfied as to the conclusions of the learned High Court judge in respect of the inordinate and inexcusable nature of the delay in this case. It is also entirely in agreement with his conclusion that the balance of justice favoured the dismissal of the action taking into account not only the principles of law advanced in Primor, but the more recent jurisprudence of the court concerning its own obligations and those of litigants as arise by virtue of Article 6 (1) of the Convention.
75. For all of the aforementioned reasons this Court will dismiss the appeal.
O’Brien v Financial Services Ombudsman
[2014] IEHC 268,
JUDGMENT of Mr. Justice Hogan delivered on the 7th May, 2014
1. It cannot be any great surprise that the financial calamities which have beset this State since the middle of 2008 have brought in their wake an increased level of complaints regarding financial institutions. These developments have in turn put pressure on the hard pressed office of the Financial Services Ombudsman, whose officials carry an increasingly heavy burden in dealing with such a volume of complaints.
2. The issue in the present case concerns the delays in the office of the FSO. The issue arises in the following way. The applicant, Mr. O’Brien, is a civil servant who entered into a hire purchase agreement in May 2008 and took possession of a motor vehicle as a result. By 2010 the applicant had encountered financial difficulties and sought to terminate the agreement in accordance with s. 63 of the Consumer Credit Act 1995. He was thwarted in this endeavour by the relevant credit institution because he was informed that, given that there were arrears outstanding on the account, he could not then terminate the agreement. He was ultimately permitted to terminate, but not before he was required to make ten additional monthly payments amounting to €4,690.
3. The applicant accordingly submitted a complaint to the FSO arising from the actions of the credit institution in question in refusing to allow a termination of the account. In April 2012 the FSO rejected the complaint, in part because the view was taken that the decision of Hanna J. in Gabriel v. Financial Services Ombudsman [2011] IEHC 318 did not have retroactive effect.
4. That adverse decision was then appealed to this Court. Following a number of adjournments (to which the applicant had objected). However, on 14th September 2012 the solicitors for the respondents indicated that it was not intended to oppose the appeal. An order was accordingly made by the High Court on 8th October 2012 setting aside the earlier decision and the matter was remitted to the FSO for further review. In the course of those proceedings the applicant was represented by the Free Legal Advice Centre (“FLAC”).
5. On 13th November, 2012, the applicant’s solicitor complained about the delay and sought a timetable for the resolution of the complaint. Further correspondence ensued, some of it directed to the question of whether the original decision-maker should determine the remitted matter. The original decision-maker wrote to the applicant’s solicitor on 28th March 2013 to indicate that he would have no further involvement in the matter. He also pointed out that it was anticipated that “re-consideration of the remitted matter will commence shortly” and that the FSO would shortly be in contact in that regard.
6. The matter appears to have been assigned to a different case-officer in early June 2013, because she then wrote to the applicant (and the other parties) indicating that the reconsideration of the complaint had commenced. Further correspondence ensued in relation to the question of whether FLAC still represented the applicant (given that he had personally contacted the FSO on a number of occasions) and whether the parties wished to make further submission.
7. The FSO ultimately wrote to FLAC on 2nd October, 2013, indicating that the only issue delaying the further consideration of the complaint was whether the applicant still wished to make a response, the financial services company in question having confirmed by letter dated 20th August, 2013, that it had nothing further to add. FLAC responded by letter dated 11th November, 2013, expressing surprise at the suggestion that it was somehow impeding the final resolution of this matter. The letter-writer added that it was clear from the file that “our client relies squarely on the decision of the High Court in the Gabriel case. Accordingly, there is no necessity for this reliance to be repeated in further submissions”.
8. In the meantime these proceedings had been commenced on 8th July, 2013. The complaint in essence was that by failing to making a decision the FSO had erred in law and, specifically, had delayed unduly in making that fresh adjudication. The applicant then sought an order of mandamus compelling the FSO to make a fresh decision on the remitted complaint. These judicial review proceedings were heard in March 2014 and a decision had yet to be made, although I was informed that such a decision was imminent.
The criticism of the Financial Services Ombudsman’s Office
9. Before examining the merits of this judicial review application it is, however, first necessary to address a separate matter to which the Financial Services Ombudsman drew attention in the course of the hearing. The hearing commenced on 5th March, 2014, but it was adjourned to 14th March, 2014, to be completed. On the 7th March, 2014, the applicant’s solicitors, FLAC, separately published a report entitled “Redressing the Imbalance: A Study of Legal Protection Available for Consumers and Credit and other Financial Services in Ireland.” The report offered a critique of what the authors maintained was the imbalance within the consumer protection code in favour of credit institutions and at the expense of consumers.
10. Particular objection is taken on the part of the Ombudsman to the following passage in which the original decision in the applicant’s case is discussed:
“To compound the error of law made in the Gabriel case, the subsequent (initial) decision of the Financial Services Ombudsman in the case of O’Brien v. PTSB Finance takes what FLAC would regard as a pro-industry attitude considerably further…what kind of legal reasoning is at play here?”
11. The Ombudsman objects to the fact that FLAC would publish such a report dealing with an earlier stage of these proceedings while the present case is at hearing. While one could understand that a conscientious public officer such as Ombudsman would be anxious to uphold the independence of his office against perceived slights of this kind, it seems to me that as a matter of law his objection is not well founded.
12. The report published by FLAC is a sober and well informed critique of recent legislative and judicial developments in an area in which there are doubtless a wide variety of views. One may reasonably infer that the publication date of the report and the hearing date for the judicial review just happened to coincide. The publication by FLAC was, in any event, but a classic example of where an endeavour was made to educate public opinion in the sense acknowledged and protected by Article 40.6.1.i of the Constitution. As I observed in Hyland v. Dundalk Racing (1999) Ltd. [2014] IEHC 60:
“Given that the free exchange of ideas, arguments and views is central to the operation of the democratic State envisaged by Article 5 and is at the heart of the protections of free speech and peaceable assembly contained in Article 40.6.1, the public expression and manifestation of different and dissenting views must – in general, at least – be tolerantly accepted by all.”
13. It is true that the criticism of the Ombudsman as “pro industry” may be regarded by him and all who work in the FSO (and indeed others) as unfair and unwarranted. But the expression of such views – whether warranted or otherwise – is, as I pointed out in Hyland, central to the guarantee of a functioning democracy in Article 5 and is at the heart of the constitutional protection in Article 40.6.1. The core of these constitutional guarantees would be wholly undermined if such views could not be freely voiced. This especially so in the context of criticisms of those – such as politicians, judges and statutory office holders – who are privileged to exercise high office in the name of the People of Ireland.
14. It is, accordingly, sufficient to say that the expression of these views is fully protected by Article 40.6.1 of the Constitution and that no objection can be taken to the expression of such views.
Whether there has been undue delay on the part of the FSO
15. The leading authority on the question of undue delay and decision making by administrative bodies remains that of O’Donoghue v. Legal Aid Board [2004] IEHC 413, [2006] 4 IR 204. In that case the plaintiff experienced a delay of 24 months between contacting the Legal Aid Board) for legal aid and ultimately obtaining an appointment with a solicitor. A further month elapsed before she was given a legal aid certificate in respect of urgent family law proceedings. As Kelly J. noted in his judgment, it was quite clear that the plaintiff in that case was, at all material times, entitled to legal aid but she nonetheless had to wait for a period in excess of two years before she obtained her legal aid certificate.
16. Extensive evidence was given in that case regarding the under-funding of the Board and how this compromised its ability to discharge its statutory mandate. Kelly J. stated that he was quite satisfied from the evidence that ([2006] 4 IR 204, 226):
“…the cause of the delay encountered by the plaintiff was the absence of resources in the law centre to meet demands. Had the Board been provided with the staff which it sought, the plaintiff would have been given an appointment to see a solicitor within a period of about four to five months at most.”
17. Kelly J. rejected the argument that the plaintiff could recover damages against the Board either by virtue of a claim for damages under the Civil Legal Aid Act 1995 or in negligence ([2006] 4 IR 204, 228):
“If the plaintiff here made a claim solely by reference to an alleged breach of statutory duty on the part of the Board…. she would in my view have to [fail]. The Board in this case did all it could to provide for her and indeed other persons within its resources. The sole cause of the delay encountered by the plaintiff was the lack of resources of the Board. It is hard to think that it could have done anymore than it did to acquaint the relevant parties with its precarious position. The failure to address that position was not the fault of the Board……..Her claim in negligence against the Board must likewise fail. I am unable to identify any act of negligence on the part of the Board or it’s officers. They were simply being swamped with work and their cries for assistance went unheeded. The working conditions that they had to experience and the demands being made upon them are evidenced in the lengthy memoranda that were sent regularly by the Board’s Chief Executive to the relevant department. The conditions under which the Board’s personnel had to operate were woefully substandard and the reason for that was the failure to resource the Board properly.”
18. Kelly J. then went to consider the claim for damages for breach of constitutional rights. He first quoted in this context the well-known passage from the judgment of Kenny J. in Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345, 358 dealing with the right of access to the courts:
“That there is a right to have recourse to the High Court to defend and vindicate a legal right and that it is one of the personal rights of the citizen included in the general guarantee of Article 40, sect. 3, seems to me to be a necessary inference from Article 34.3.1…If the High Court has this full original jurisdiction to determine all matters and questions (and this includes the validity of any law having regard to the provisions of the Constitution) it must follow that the citizens have a right to have recourse to that Court to question the validity of any law having regard to the provisions of the Constitution or for the purpose of asserting or defending a right given by the Constitution for if it did not exist, the guarantees and rights in the Constitution would be worthless.”
19. Kelly J. then continued ([2006] 4 IR 204, 232);
“The plaintiff contends that she had no realistic prospect of access to the courts without the assistance of a lawyer. I agree with her. She qualified for such assistance under the relevant statutory provisions and regulations but was denied the necessary help for a period of 25 months.”
20. Kelly J. then reviewed the earlier authorities dealing administrative bodies and legal aid. He noted that in Kirwan v. Minister for Justice [1994] 1 I.L.R.M. 444 in dealing with a complaint about the absence of legal aid for persons seeking review of their detention on foot of guilty but insane verdicts, Lardner J. held that the constitutional requirement of fair procedures applied and obliged the executive to provide legal aid for an appropriate person.
21. Kelly J. then proceeded to observe ([2006] 4 IR 204, 234):
“Applying the approach of Lardner J. it seems to me that the unfortunate circumstances of the plaintiff in the present case are such that access to the courts and fair procedures under the Constitution would require that she be provided with legal aid. That view is reinforced by the fact that she fell squarely within the entitlements to such under the Act and the regulations but was denied it for a period of 25 months because of the manifest failure of the State. The delay in granting the certificate for legal aid, in my view, amounted to a breach of the constitutional entitlements of the plaintiff and if she can demonstrate loss as a result she is entitled to recover damages in respect thereof.”
22. Kelly J. then proceeded to make an award of damages for breach of constitutional rights in favour of the plaintiff. It was not necessary to grant any mandatory injunction or declaratory relief because the plaintiff had by this stage been awarded the requisite certificate.
23. Given that the role and functions of the FSO in some respects at least duplicate those of the courts in adjudicating disputes concerning the conduct of credit institutions (cf. here my comments in this regard in Lyons v. Financial Services Ombudsman [2011] IEHC 454) and having regard to the fact that a decision of the FSO is capable of creating a res judicata (cf. the decision of Charleton J. in O’Hara v. Agricultural Credit Corporation [2011] IEHC 367), it seem to me that the principles articulated by Kelly J. in O’Donoghue are applicable, at least by analogy, to decisions taken by the FSO. Such a decisions must, accordingly, be taken within a reasonable time. Quite independently of domestic constitutional law, it must also be recalled that as the FSO is effectively adjudicating on civil rights and obligations, the obligation under Article 6 ECHR to determine the complaint within a reasonable time accordingly applies: see, e.g., the judgment of Males J. in R. (Calland) v. Financial Ombudsman Service Ltd. [2013] EWHC 1337 (Admin).
24. This conclusion regarding domestic constitutional law is, in any event, further re-inforced by the comments of Edwards J. in KM v. Minister for Justice, Equality and Law Reform [2007] IEHC 234 to the effect that:
“the entitlement to a prompt decision is an aspect of constitutional justice. Moreover, quite aside from constitutional justice it is clear from the authorities that the idea of substantive fairness includes a duty not to delay in the making of a decision to the prejudice of fundamental rights.”
25. In this regard Edwards J. considered that the following were relevant considerations:
“1. The period in question;
2. The complexity of the issues to be considered;
3. The amount of information to be gathered and the extent of enquiries to be made;
4. The reasons advanced for the time taken; and
5. The likely prejudice to the applicant on account of delay.”
26. In Nearing v. Minister for Justice, Equality and Law Reform [2010] 4 I.R. 211, the applicant had sought a certificate of naturalisation but by the time the case had come on, the applicant had been granted residency and accordingly the case was moot save in relation to costs. Cooke J. referred specifically to the fact that what he was dealing with was not the exercise of a statutory power but a non-statutory administrative scheme and the Minister was under a duty to be bound by its self-imposed terms. Cooke J. stated as follows at para. 21:
“In the present case, as outlined in the summary of the correspondence above, there was, on the one hand, no element of urgency in the applicant’s personal situation which would have required the Minister to depart from the normal administrative order for dealing with applications for long term residency so as to accord this application some priority. Even his ‘long-term relationship’ and expectant fatherhood could not be said to constitute such a factor. Moreover, nothing in the department’s response to the application and subsequent inquiries could be said to have provoked any suspicion that the application was being put on the long finger or that the division operated some arbitrary and unreliable system for processing long term residency applications. On the contrary, the replies from the division gave a coherent and transparent account of the way in which it operated and the progress that was made. Applications were processed on a strict and, therefore fair, order of receipt and the applicant was kept informed from time to time as to how close the applications of August 2007 were to being processed.”
27. Cooke J. went on to hold at para. 25:
“Once it is clear that the Department has in place a particular system for the administration of such a scheme, it is not the role of the court in exercise of its judicial function to dictate how a scheme should be managed or to prescribe staffing levels or rates of productivity in the relevant section of the department. Once it is clear from the evidence that there is in place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case.”
28. In Salman v. Minister for Justice and Equality [2011] IEHC 484 Kearns P. held that a three year delay in processing an application for naturalisation was unlawful. In contrast to cases such as Nearing there was no evidence
“…of any purported system which is in place for dealing with applications for certificates of naturalisation. The letters sent by the respondent in the context of the application for the certificate cannot constitute evidence as to the truth of the matters alleged therein, i.e. that the respondent had a fair system in place whereby applications were dealt with in chronological order.
The respondent was in possession of all documentation necessary to make a decision since June 2008, and never indicated to the applicant that there was anything outstanding. The respondent did not at any time indicate what was causing the delay in processing the application and refused to explain why the period of delay extended far past the average time period put forward by the Department. There is no affidavit evidence at the time of bringing this application aside from the respondent’s bare assertion, that the respondent had in place a fair and rational system for the processing of applications.”
29. In the light of this case-law we may now consider whether there has been any undue delay on the part of the FSO and whether the system for processing these applications was rational and fair.
Has there been a breach of the O’Donoghue principles by the FSO?
30. In assessing the question of whether there has been a breach of the O’Donoghue principles, the relevant factual context must naturally be taken into account. As the Ombudsman, Mr. Prasifska, noted at paragraph 13 of his affidavit of 21st October, 2013:
“While our resources are limited, this Office has been managing an ever increasing workload, reaching a record level of 8,135 complaints in 2012. We receive, on average, between 500 and 600 new complaints each month. The unavoidable result of this is that there have been delays in the processing of cases. Complaints are dealt with in date order. They are allocated to investigators in the order in which they are received and the same principle is applied to remitted cases, in that the first remitted case in time is dealt with first and so forth.
31. Mr. Prasifska goes on to say (at paragraph 15) that:
“While there was a delay in dealing with the remitted matter, it was entirely attributable to the capacity constraints of this Office in managing an ever increasing workload.”
32. I might add that in the course of the hearing I was informed that the Office had just four case-officers. Viewed in that context and given the complexity of many complaints, the output of the FSO – both in terms of both quality of decision-making and the quantity of adjudications – is truly admirable, almost heroic. The only wonder is that the delays in the FSO to date have not been of even greater proportions.
33. Unlike, for example, the situation disclosed in Salman with regard to the delays in processing naturalisation applications, the evidence here suggests that the applicant was generally kept informed of progress. The remitted applications are dealt with in a strict date order and the resource constraints to which the FSO is subject are all too obvious.
34. Measured against those factual parameters, I cannot say that the delays to date, while regrettable, are objectively excessive, although I accept that, having regard to the fifth criterion enunciated by Edwards J. in KM, these delays are to some degree prejudicial so far as the applicant is concerned. In this regard, time must be regarded as having re-commenced when the matter was remitted to the FSO in October 2012 by order of the High Court.
35. Of course, it might be thought that, in the majority of cases at least, the remitted cases should be dealt with more speedily than the initial complaints given that the broad parameters of the facts and the law will, generally speaking, have already been established. I agree that it was unfortunate that it took until June 2013 before the case was re-assigned and I further agree that the fresh adjudication on this case would seem straightforward. Yet such delays as there have been are not – as yet, at least – of such a magnitude as to call for prescriptive judicial intervention. While naturally reluctant to set down some ex ante time limit, a delay of two years between complaint (or the fresh remittal of the complaint, as the case may be) and adjudication would probably lie at the outer limits of what the courts could judicially tolerate.
36. As we have seen, this limit has not yet been reached in the present case. Even in those cases where it was so breached it would seem that, as on the facts of O’Donoghue, it is likely that in all probability these delays would be caused not by any wilful failure on the part of the FSO, but simply by reason of a lack of adequate staff and resources.
Conclusions
37. While the delays in the present case are undoubtedly unfortunate, I cannot say that the delays are so manifestly excessive as to be inexcusable. In this regard particular regard must be had to the resource constraints under which the FSO is currently operation.
38. In these circumstances I find myself obliged to dismiss this application for judicial review.
Macauley v. Minister for Posts and Telegraphs.
[1966] IR 345
Kenny J.
In June, 1963, the plaintiff, Mr. William P. Macauley, a farmer who lives at Manor Kilbride, County Wicklow, was so dissatisfied with the telephone service which he was getting that he decided to take legal proceedings against the Minister for Posts and Telegraphs. His legal advisers decided to claim a judicial declaration that the Minister was under an obligation to provide a proper, reasonably efficient and effective telephone service for him under the agreements for telephone service which he had signed. On the 26th June, 1963, his solicitors sent to the Attorney General’s Office a draft of the plenary summons which they proposed to issue with a certificate from a well known member of the Bar that the case was a proper one for the grant of the Attorney General’s fiat. On the 28th June his solicitors were informed by letter that the practice was that a statement of the facts about the proposed action had to be sent to the Attorney General before he could consider the grant of a fiat. A statement of facts was sent on the 9th July and a long correspondence followed. The then Attorney General did not grant or refuse a fiat but asked for more information. This correspondence continued until the 10th February, 1964, when the plaintiff’s solicitors abandoned their attempt to get the fiat and, on the 24th February, issued a plenary summons in this Court against the Minister in which they claimed a number of declarations.
Shortly after the issue of the summons, some preliminary skirmishing took place in this Court in the course of which counsel for the Minister stated that his client had not been served with the summons and had not entered an appearance. The matter was then put on a more regular basis by a motion, issued on the 21st April, 1964, in which the Minister applied for an order that “the purported service of the originating plenary summons herein be set aside on the ground of irregularity in that the provisions of section 2, sub-section 1, of the Ministers and Secretaries Act, 1924, have not been complied with.” This is the section which provides that a Minister of State may sue and (subject to the fiat of the Attorney General having been in each case first granted) be sued in his official name. I adjourned the hearing of the motion to allow the plaintiff to serve notice of it upon the Attorney General because I was informed that the plaintiff wished to contest the constitutional validity of this section. On the 11th May, 1964, the Court ordered that a preliminary issue, whether s. 2, sub-s. 1, of the Act to which I have referred is repugnant to the Constitution in so far as it requires the fiat of the Attorney General to be obtained before proceedings can be validly instituted against a Minister for State, be tried. Mr. Macauley’s desire to bring proceedings in connection with his telephone service has produced a most interesting debate in which issues of great historical interest and of even greater constitutional importance have been discussed with learning and ability.
Part of the long title to the Ministers and Secretaries Act, 1924, was:”An Act for constituting and defining the Ministers and Departments of State in Saorstat Eireann pursuant to the Constitution and declaring the functions and powers of the Attorney-General.” Sect. 1 of it provided that there was to be established in Saorstat Eireann the Departments of State named in the 11 following subparagraphs,”. . . each of which said Departments and the powers, duties and functions thereof shall be assigned to and administered by the Minister hereinafter named as head thereof.” One of these Departments was the Department of Posts and Telegraphs and the Minister for Posts and Telegraphs was the head of this Department. Sect. 2, sub-s. 1, provided that each of the Ministers, heads of the Departments of State mentioned in s. 1, was to be a corporation sole under his “style or name aforesaid,” was to have perpetual succession and “may sue and (subject to the fiat of the Attorney General having been in each case first granted) be sued under his style or name aforesaid.”
The Constitution of the Irish Free State adopted by the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922, on the 25th October, 1922, did not contain any provision about an Attorney General. Sect. 6 of the Ministers and Secretaries Act, 1924 (passed on the 21st April, 1924), provided, however, that there was to be vested in the Attorney-General of Saorstat Eireann (who was to be appointed by the Governor-General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General and the Solicitor-General for Ireland. In the interval between the establishment of the Irish Provisional Government by the Articles of Agreement for a Treaty between Great Britain and Ireland, signed on the 6th December, 1921, and the passing of the Ministers and Secretaries Act, 1924, there was a law officer of the Provisional Government (see the Irish Provisional Government Public Notices made on the 31st March, 1922, and on the 9th September, 1922).
Article 30 of the Constitution of 1937 deals with the Attorney General. It provides that there is to be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion and who shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by the Constitution or by law. Article 50 of the Constitution provides that subject to it and to the extent to which they are not inconsistent with it, the laws in force in Saorstat Eireann immediately prior to the date of the coming into operation of it are to continue to be of full force and effect until they have been repealed or amended by the Oireachtas. Sect. 2, sub-s. 1, of the Act of 1924 has not at any time been amended or repealed.
Mr. Micks’ first argument in support of his contention that s. 2, sub-s. 1, was unconstitutional in so far as it required the fiat of the Attorney General to be granted before proceedings could be taken against a Minister was that the fiat referred to in the Act of 1924 was to be granted by the holder of the office of Attorney-General, an office which, he said, existed in 1924 but did not exist in 1963. He said that the Constitution of 1937 represented a clear break with the past, that the Attorney General is no longer the King’s Attorney in any sense and that the office of Attorney-General under the Act of 1924 was “a carry over” from the former officer who was called the law officer of the Crown. He maintained that the origin of the fiat referred to in the Act of 1924 was the immunity of the Crown from legal proceedings and that the fiat was thus inconsistent with the nature of the State established by the Constitution of 1937. He added that the reference in Article 30 of the Constitution to the Attorney General exercising and performing all such powers, functions and duties as are conferred or imposed on him by the Constitution or by law could not include the power of giving or withholding the fiat conferred by the Act of 1924.
Until recent times Irish law had not worked out a clear concept of the State as a legal entity or a legally recognised person because, until 1921, the State was personified in the King. English law has not yet succeeded in doing this. The Courts in England and, until 1921, in Ireland were the King’s Courts and the King could not therefore be sued in his own Courts by the processes which were appropriate as between subject and subject. The growth of the areas in which acts of the King’s Ministers might affect the rights and property of subjects and the numerous injustices which the rule that the King could not be sued in his own Courts worked, produced a form of legal proceedings called “a petition of right” by which a subject who had been deprived of property by the actions of the King’s Ministers or by those employed in the public service could obtain redress in the Courts. The basic principle adopted by the High Court (which invented this form of relief) was that a subject who claimed that a legal right of his had been infringed by the actions of a Minister of State or of those in the public service could bring proceedings against the Crown by a petition of right if he would have been entitled to redress for violation of the right if the defendant had been another subject. Thus, the person
who brought the petition of right had to establish that he had a right which the law recognised and which, if he were asserting it against a fellow-subject, would be vindicated by the writs and summonses which were then issued by the Courts. The history of the development of this idea will be found in volume 9 of Professor Holdsworth’s History of English law, in the English decision of Thomas v. The Queen (1) and in the Irish decisions of the Kildare County Councilv. The King (2), The Dublin Corporation v. The King (3)and In re Irish Employers Mutual Insurance Association Limited (4).
The procedure in petitions of right was regulated by the Petitions of Right (Ireland) Act, 1873, s. 2 of which stated the basic principle to which I have referred. It provided:”Any petition of right may, if the suppliant think fit, be entitled in any one of the superior courts of common law or equity at Dublin in which the subject matter of such petition, or any material part thereof, would have been cognizable if the same had been a matter in dispute between subject and subject . . . and upon the presentation of such petition the proceedings shall be the same as are provided for by the said Act” (the English Act of 1860 to which I will refer later), “save and except that same may be, if Her Majesty shall be pleased to grant her fiat to that effect, prosecuted in the court in which same shall be so entitled,” and s. 4 provided that the provisions of the Petitions of Right Act, 1860 (the English Act), were to extend to and be applicable to proceedings under the Act of 1873. The English Act of 1860 provided (s. 2) that the petition was to be left with the Secretary of State for the Home Department in order that it might be submitted to Her Majesty in order that Her Majesty, if she should think fit, might grant her fiat that right be done. Sect. 7 showed that the Act was procedural only because it provided that nothing in the Act was to be construed to give to the subject any remedy against the Crown in any case in which he would not have been entitled to such remedy before it was passed.
The petition of right could be used with success when any Minister of State or those in the public service had wrongfully deprived a subject of his property or had committed a breach of a contract entered into with him: in such cases the Crown could be made liable for damages or compensation though the breach had not been committed by the Minister but by some of his officials. For reasons which have never been satisfactorily explained, a petition of right could not be brought when the complaint related to a legal wrong (classified as a tort) committed by an official in the public service: in such a case an action lay against the official personally but neither the Crown nor a Minister of State could be made liable. This absurd rule has been adopted in this country but does not now apply to accidents involving motor vehicles owned by the State. In Carolan v. Minister for Defence (1) an attempt was made to make the Minister for Defence liable for the negligence of a member of the armed forces. The High Court held that the relationship of master and servant did not exist between the Minister for Defence and a member of the Army as the Minister and each member of the Army were fellow-servants of the State.
The subsequent cases in our Courts ( Comyn v. Attorney General ) (2) and Commissioners of Public Works v.Kavanagh (3)) have, however, established an entirely new concept which is more in accord with modern thought than the ideas which inspired the decision in Carolan v. Minister for Defence (1). These two cases establish that the Republic of Ireland (or the People) is, and that Saorstat Eireann was, a legally recognized juristic person capable of holding property. In my view, the State may now be sued in the Courts whenever this is necessary to vindicate or assert the rights of a citizen. I reserve the question whether the decision in Carolan v. Minister for Defence (1) is now a correct statement of the law.
This short account of the history of the petition of right may explain why the fiat of the Attorney-General was introduced into the Act of 1924: it establishes that the concept of granting the fiat came from the royal immunity from being sued in the Courts of law. It does not follow, however, that the granting or withholding of the fiat is inconsistent with the form of State which was established by the Constitution of 1937. The fiat of the Attorney General may have been, in a historical sense, the result of the royal fiat but it was not in any sense the same fiat. It was created by an Act of the Oireachtas of the Irish Free State and was not a legacy from the functions of the law officers of the Crown. In my opinion, the office of the Attorney-General established by the Act of 1924 was a new office and the transfer to the holder of that office of the powers formerly vested in the King’s Attorney General and Solicitor General did not create any similarity in or link between their offices. I reject the argument that the words in Article 30, sect. 1, of the Constitution relating to the Attorney General, that he “shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law,” relate only to the powers, functions and duties conferred or imposed on him by the Constitution or by laws passed subsequent to its enactment because, in my opinion, the words “by law” include the Ministers and Secretaries Act, 1924. I do not accept the view that the office of Attorney-General created in 1924 ceased to exist in 1937 or that it became an entirely new office when the Constitution was passed. The absence of any reference to the Attorney General in the Constitution of the Irish Free State and the presence of Article 30 in the Constitution does not mean that the offices were different. The Constitution does not seem to me to have altered the essential nature of the office, or its functions and duties.
For these reasons all the arguments advanced by the plaintiff on this branch of the case fail.
This is, I think, a convenient place to deal with an argument advanced by counsel for the Attorney General. Mr. McCarthy said that the cause of action given against a Minister of State by the Act of 1924 was an entirely new cause of action which did not exist before, that it was given subject to the grant of the fiat and that a citizen who wished to take advantage of the grant could do so only if he complied with the condition which the Oireachtas had attached to it (the obtaining of the fiat). If one looks at the form only, the type of action against a Minister which the Act of 1924 granted is new in the sense that the action is brought against a Minister and not against the King. If however the substance is looked at, it seems to me that the changes were that proceedings after 1924 could be brought by a summons in the High Court or a civil bill in the Circuit Court and not by petition and that the action could be brought against a Minister of State and not against the King. The essential nature of the remedy is, in my opinion, unchanged though the form by which the remedy is sought has altered. I reject the argument that the cause of action given by the Act of 1924 was a new cause of action and that the citizen must therefore take it subject to the condition imposed.
The next attack on the validity of the sub-section was that the necessity to get the fiat of the Attorney General was inconsistent with Article 40, sect. 1, of the Constitution which provides:”All citizens shall, as human persons, be held equal before the law.” The necessity to obtain the fiat before proceedings could be instituted against a Minister meant, it was said, that while a Minister could sue a citizen without getting the fiat, the citizen could not sue a Minister unless he had obtained it: this was said to involve that the citizens were not being held equal before the law. The answer made to this was that the State is in a privileged position, that the right to sue a Minister of State is given by the Act of 1924 and must be taken subject to the condition of getting the fiat. This is an argument which I have already rejected. The answer to the plaintiff’s complaint in relation to equality before the law is that the guarantee in the Constitution of equality before the law relates to the position of the citizen as a human person. The fiat is required only when a Minister is being sued as Minister, not when he is being sued as a human person. The Act of 1924 deals with actions taken against a Minister as a corporation sole: the fiat is not necessary if an action is taken against the person who holds the position of Minister. It follows, I think, that the necessity imposed by the Act of 1924 to get the fiat is not an infringement of the guarantee relating to equality before the law.
The next submission was that the granting or withholding of the fiat was an administration of justice and that the Attorney General (to whom the power was given) was not a Judge. The nature and features of the fiat are, I think, an answer to this. The Attorney General may exercise the power to grant or withhold the fiat in any way he thinks fit: he is not bound to hear the partiesand he has not to give any reasons for his decision. If he refuses to grant it, he may subsequently change his mind and give it. His decision to refuse it decides nothing. The function of the Attorney General in granting or withholding the fiat is not an administration of justice in any sense.
The next attack on the section was based on Article 40, sect. 3, of the Constitution. It provides:”3, 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen,” and “2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
Counsel for the Attorney General admitted that this guarantee applies to all laws passed by the Oireachtas since the foundation of the State in 1922. The plaintiff’s argument was that the requirement of the fiat for an action against a Minister of State is a denial of or is an unnecessary interference with the right of the citizens to have recourse to the Courts to vindicate their rights. They emphasised the words in the Preamble to the Constitution by which the People of Ireland stated that they sought “to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured.” They said that the Attorney General could grant or withhold his fiat for any reason which he thought proper and that, although this power has been exercised in a fair, just and liberal manner since the foundation of the State, it could be a means by which the right of the citizen to have a decision of the Courts on his legal rights against a Minister of State could be denied.
The principles to be applied by this Court in deciding whether any part of an Act of the Oireachtas is unconstitutional have been stated on many occasions. The most recent statement of them is contained in the judgment of Mr. Justice Walsh given in the Supreme Court in The State (Quinn) v. Ryan (1) in which he said (at p. 125):”Acts of the Oireachtas enjoy the presumption of being not repugnant to the Constitution in force at the date of their enactment unless such repugnancy be clearly shown.” In a later part of his judgment he said (at p. 130):”The true test is to discover what is intra vires the statute. At the time the statute was passed and at all times up to the enactment and coming into force of the Constitution of Saorstát Eireann a prisoner could under these sections”(sections 29, 30 and 31 of the Petty Sessions (Ireland) Act, 1851) “be instantly removed from this jurisdiction to the jurisdiction from whence the warrant came. If an action is intra vires a statute but at the same time inconsistent with the Constitution it is clear that the statute cannot stand. In the exercise of powers conferred by an Act of the Oireachtas any act inconsistent with the provisions of the Constitution is probably ultra vires the statute unless expressly authorised by the statute or authorised by necessary implication because it may be presumed until the contrary be clearly shown that the Oireachtas did not intend to give legislative authority for acts inconsistent with the Constitution to which the Oireachtas itself is subject.”
I have already said that the Attorney General is free to grant or withhold his fiat for proceedings against a Minister of State for any reason and if he decides to withhold it, no proceedings to review his decision can successfully be brought in the Courts. It is thus possible that the Attorney General could refuse his fiat for a claim which would succeed. The main feature of the fiat is that proceedings against the Minister of State cannot be brought unless it is granted: it is not a power to the Attorney General to apply to the Courts to have an action against a Minister of State dismissed. Its very nature is a power, at the unfettered discretion of the Attorney General, to give or withhold a right to have recourse to the Courts to assert or vindicate a claim.
The next issue is whether a right to have recourse to the Courts to assert and vindicate a legal right is one of the personal rights of the citizen referred to in Article 40, sect. 3(1), of the Constitution. The guarantee in that section is not limited to the rights mentioned in the Constitution but extends to other personal rights of the citizen which flow from the Christian and democratic nature of the State. This matter was discussed in Ryan v. The Attorney General (1):in the course of my judgment in that case I said (at p. 313):”The next matter to be considered . . . is whether the general guarantee in Article 40, section 3, relates only to those personal rights which are specified in Article 40 or whether it extends to other unspecified personal rights of the citizen. If it extends to personal rights other than those specified in Article 40, the High Court and the Supreme Court have the difficult and responsible duty of ascertaining and declaring what are the personal rights of the citizen which are guaranteed by the Constitution. In modern times this would seem to be a function of the legislative rather than the judicial power but it was done by the Courts in the formative period of the Common Law and there is no reason why they should not do it now. A number of factors indicate that the guarantee is not confined to the rights specified in Article 40 but extends to other personal rights of the citizen. Firstly, there is sub-s. 2 of section 3 of Article 40. It reads:’The State shall, in particular, by its laws protect as best it may, from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’ The words ‘in particular’ show that sub-s. 2 is a detailed statement of something which is already contained in sub-s. 1 which is the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40. Secondly there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at allthe right to free movement within the State and the right to marry are examples of this. This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.” The judgment of the Supreme Court in that case, delivered by the Chief Justice, contained this passage (at p. 344):”The Court agrees with Mr. Justice Kenny that the ‘personal rights’ mentioned in section 3, 1, are not exhausted by the enumeration of ‘life, person, good name, and property rights’ in section 3, 2, as is shown by the use of the words ‘in particular’; nor by the more detached treatment of specific rights in the subsequent sections of the Article. To attempt to make a list of all the rights which may properly fall within the category of ‘personal rights’ would be difficult and, fortunately, is unnecessary in this present case.”
That there is a right to have recourse to the High Court to defend and vindicate a legal right and that it is one of the personal rights of the citizen included in the general guarantee in Article 40, sect. 3, seems to me to be a necessary inference from Article 34, sect. 3, sub-sect. 1, of the Constitution which provides:”The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” If the High Court has this full original jurisdiction to determine all matters and questions (and this includes the validity of any law having regard to the provisions of the Constitution), it must follow that the citizens have a right to have recourse to that Court to question the validity of any law having regard to the provisions of the Constitution or for the purpose of asserting or defending a right given by the Constitution for if it did not exist, the guarantees and rights in the Constitution would be worthless. This conclusion is supported by Article 40, sect. 4, which confers on the High Court jurisdiction to deal with a complaint that a citizen has been deprived of his personal liberty unlawfully. The existence of this right was recognised in our Courts more than 80 years ago by the Vice-Chancellor in Massy v. Rogers (1) when he said (at p. 417):”Every subject of the realm is entitled to free access to those tribunals (the Courts), to ascertain, establish and enforce the rights which the law gives him, whether arising upon contract, or upon testamentary disposition. In my opinion, any attempt to exclude this right is unlawful and inoperative.” As there has been no discussion in this case of the meaning and ambit of Article 34, sect. 3, I reserve the important issues whether it is possible under the Constitution to confer exclusivejurisdiction in any justiciable matter on any Court other than the High Court and whether the provisions in the various Courts of Justice Acts dealing with the power of the High Court to remit actions to the Circuit Court are in accordance with the Constitution.
If then there is a personal right of the citizen to have recourse to the High Court and if that is one of the rights included in the guarantee in Article 40, sect. 3, two further issues arise. The first is whether the State has by s. 2, sub-s. 1, of the Ministers and Secretaries Act, 1924, respected that right: the second is whether the State has, as far as is practicable, by its laws defended and vindicated it.
The refusal of the fiat has the result that a plaintiff who wishes to sue a Minister of State in the High Court cannot validly commence his action: the refusal of it is, therefore, a denial of the right to have recourse to the High Court and this is made possible by s. 2, sub-s. 1, of the Act of 1924. It seems to me that there is a close analogy in this case to the position which arose in The State (Quinn) v. Ryan (1).In that case the members of the Supreme Court held that s. 29 of the Petty Sessions (Ireland) Act, 1851, was repugnant to the Constitution because it was possible under it to remove a citizen from the State without giving him an opportunity to make an application to the High Court to question his arrest for the purpose of his removal. The Act in question in that case was an Act of 1851 to which no presumption of being constitutional applied. The Act of 1924 has that presumption in its favour and should, if possible, be construed in such a manner that it will be consistent with the Constitution. But on any construction of it, the Attorney General may refuse his fiat for any reasons which seem to him to be sufficient and which may be mistaken.
I am also of opinion that s. 2, sub-s. 1, of the Act of 1924 does not respect the personal right of the citizen to have recourse to the High Court when he wishes to bring proceedings against a Minister of State. The High Court had in 1924 and now has power to order any pleading to be struck out on the ground that it discloses no reasonable cause of action or on the ground that the cause of action is frivolous or vexatious. This power existed in 1924 and now exists and there was then and now is an adequate and satisfactory procedure available in the High Court to dispose immediately of claims against Ministers for State when these are obviously not sustainable. The State has committed itself to defending and vindicating as far as practicable the personal rights of the citizen by its laws and it seems to me that the necessity to obtain the fiat before instituting proceedings against a Minister for State is a failure by the State to defend and vindicate one of the personal rights of the citizen included in the constitutional guarantee.
In my opinion, s. 2, sub-s. 1, of the Ministers and Secretaries Act, 1924, is repugnant to the Constitution in so far as it requires the fiat of the Attorney General to be obtained before proceedings in the High Court can be validly instituted against a Minister for State. The preliminary issue which was directed will be answered in accordance with this view.
MacGairbhith v Attorney General
[1991] 2 IR 412
O’Hanlon J.
13th November 1991
The plaintiff brings these proceedings in his personal capacity claiming relief against the Attorney General in the latter’s capacity as representative of the People of Ireland. In his plenary summons and statement of claim, the plaintiff seeks relief under a number of different headings which I will deal with in the order in which they appear in the statement of claim. He says bluntly in para. 1 of that document:
“The plaintiff says that he should not have to pay money to gain access to any court in the country.
Better particulars of paragraph 1.
The plaintiff buys and completes his own documentation and then is charged a fee before being allowed entry to the courts.”
He said in the course of his evidence: “It cost me £100 to enter court here today.”
The plaintiff has raised an important issue and one which has caused considerable concern in legal circles as well as among ordinary laymen. The levies payable to the State by litigants in the form of stamp duty on legal documents and other charges have risen in our own time to levels which would have been unthinkable in former times. On top of these standard charges of which the plaintiff complains, the imposition of value-added tax on solicitors’ and barristers’ fees (initially at 25%) must have had a calamitous effect on litigants who had no possibility of setting it off against value-added tax credits to which they might have been entitled. These charges levied by the State are the price the citizen has to pay for access to the courts where his rights under the Constitution and the ordinary law are to be protected, and disputes are to be resolved between parties in an orderly and acceptable manner. I have no doubt that the frightening cost of litigation, made up in part of these heavy charges levied by the State, are a major deterrent to people who wish to have access to the courts established under the Constitution and may in many cases actually prevent parties from availing of rights nominally guaranteed to them under the Constitution. Lord Devlin wrote on one occasion: “Litigation, which was intended as a gentle solvent of disputes, has become instead a thing of horror.”
I do not think, however, that the present case is an appropriate one for passing judgment on the constitutionality of the charges which are the subject of complaint by the plaintiff. Before such an important issue could be resolved it would be necessary to put before the court much more detailed evidence than has been given in the present case concerning every aspect of intervention by the State in the work of the law courts for the purpose of raising revenue for the public finances. It would also be difficult to convince me that any imposition of this kind, however small, would involve a breach of constitutional rights, and that no regard should be had in determining the issue, to the ability of the plaintiff to meet such charges without undue hardship. In the present case it is apparent that the plaintiff has, in fact, exercised his right of access to the courts on a number of occasions and there is no evidence to suggest that he has actually been prevented from exercising that right or caused undue hardship in the process of exercising it, by having to pay the levies of which he complains. The question of locus standi must therefore be in doubt and for this reason also I think the issue should be left for determination to another time.
It is of interest to note, however, before the issue is put to one side, that a similar claim which came before the United States Supreme Court in 1971, Boddie v. Connecticut (1971) 401 U.S. 371, was upheld by that court. Harlan J., speaking for the majority of the court, gave judgment in a case in which a group of welfare assistance recipients attacked the constitutionality of the State’s filing fees in divorce actions. The court found that when the State monopolised the avenues to a specific settlement of a dispute over a fundamental matter such as marriage – only the State could terminate the married state – then it denied due process by inflexibly imposing fees which kept some persons from using that avenue. Harlan J. held that an apparently neutral law or policy which did in fact deprive an individual of a protected right would be held invalid even though as a general proposition its enforcement served a legitimate government interest. He cautioned, however, that the case was not to be taken as establishing a general right to access to the courts.
The plaintiff’s second claim is an allegation that he is being prevented from gaining access to “the law” by reason of the fact that the State (represented in these proceedings by the Attorney General) has failed to provide a place, namely a law library, for the plaintiff to study the law of the country.
I consider that the ordinary layman who is unable or unwilling to engage the services of a lawyer to represent him in the courts, must, under the Constitution, nevertheless be allowed full and free access to the courts in his personal capacity to assert or defend his legal rights, and when this happens such person is normally given as much assistance as is reasonable by judges and court staffs in the presentation of his case. In my opinion, however, the further obligation to provide a law library for the use and enlightenment of such a person does not arise as one of the unspecified rights which may arise by inference in the interpretation of the Constitution, and I reject the claim made by the plaintiff under this heading.
The plaintiff’s third claim is that one of the registrars of the High Court prevented his access to the courts in the month of November, 1990, by refusing to accept court documents from him. The evidence of the registrar, which I accept, was to the effect that the plaintiff sought to bring proceedings in the High Court in connection with other proceedings then in progress in the Circuit Court but presented an application in the Circuit Court proceedings for acceptance in the Central Office of the High Court. It was pointed out to him that the procedure he was following was irregular and could not be acted upon, and he was informed as to the correct procedure, but did not return on any subsequent occasion to remedy the defects in his documentation. I therefore decide against the plaintiff on this issue also.
His fourth claim seeks to challenge the validity of proceedings which took place before Judge Shields in the District Court on the 22nd October, 1990, when he says he was not given a fair hearing. He has lodged a notice of appeal to the Circuit Court which is the primary remedy open to him if dissatisfied with the out-come of the District Court proceedings, but so far has elected not to proceed with the appeal.
It was also open to him to apply for leave to apply for judicial review, following the procedure laid down in the Rules of the Superior Courts, but he has not followed this course, and accordingly I hold that the claim under this heading is misconceived and cannot be accepted in the present proceedings and is rejected.
A further claim relates to proceedings in the Circuit Court when the plaintiff considers that he was convicted of contempt of court and subjected to the penalty of being required to apologise to the court. This occurred on the 7th November, 1988, and was followed by an application brought by the plaintiff to the Court of Criminal Appeal for leave to appeal. This was refused by the Court of Criminal Appeal. In his statement of claim the plaintiff suggests that the matter should be re-opened because of fresh evidence having become available. I have heard no evidence suggesting that any additional evidence has come to light, and even if it had, I am satisfied that there is no scope for re-opening the matter in the present proceedings, and I refuse this application.
Efe v Minister for Justice Equality and Law Reform
[2011] IEHC 214
UDGMENT of Mr. Justice Hogan delivered on 7th June, 2011
1. In these proceedings the applicants seek to challenge a decision of the Minister where he sought to deport the first named applicant, even though the effect of that decision would be effectively to rupture – more or less permanently – his family ties with his two Irish citizen step-children. In a reserved judgment delivered on 25th February, 2011, I concluded that the applicants had established substantial grounds for contending that the Minister had not conducted a full and fair assessment of their case by reason, inter alia, of the fact that the file analysis had minimized the potential impact which the deportation of their step-father would have on such children. Leave to apply for judicial review of that decision was granted accordingly. It should also be noted that the couple also have a younger Irish born child and the issue as to whether the child is also an Irish citizen may also feature in the main proceedings.
2. At this stage of the proceedings the applicant now contend that the common law rules of judicial review are unconstitutional in that it is contended that these rules are basically ineffective to secure the protection of the fundamental rights which are engaged by the asylum and deportation process. It is further contended that in the event that these rules are found to be constitutional, the applicants are nonetheless entitled to a declaration of incompatibility pursuant to s. 5(2) of the European Court of Human Rights Act 2003 on the ground that their right to an effective remedy under Article 13 ECHR has been violated. As the pleadings were originally constituted there was no constitutional challenge. In the companion decision, S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 31, I ruled that the applicants were not entitled to seek a declaration of incompatibility without having first exhausted their constitutional remedies. Leave to amend was accordingly granted in that case, this case and the other companion cases, Oboh v. Minister for Justice, Equality and Law Reform, Fashade v. Minister for Justice, Equality and Law Reform and Alli-Balugon v. Minister for Justice, Equality and Law Reform in order to allow the parties to plead the constitutional issue. The other three cases all present similar facts and issues. This judgment also governs the constitutional and ECHR issues raised in the latter three cases so far as the adequacy of the common law judicial review rules are concerned.
3. Before proceeding further, it is probably important to state exactly what is embraced in this description of the common law rules of judicial review. The applicants do not challenge the basic procedural rules (such as the requirements as to leave, filing of affidavits and amendment of pleadings) contained in Ord. 84 RSC. Nor do they challenge the special requirements governing applications involving the asylum and immigration process prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, this matter having in any event already been conclusively determined by the Supreme Court in its decision in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 2000 [2000] 2 I.R. 326. Instead, the applicants rather challenge the constitutionality of what might be termed the substantive common law rules of judicial review, namely, reasonableness, rationality and so forth on the ground that these rule do not provide an adequate remedy. In line with the proper sequence of issues indicated by the Supreme Court in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 IR 635 and McD v. L. [2009] IESC 81, [2010] 2 IR 199, I will first deal with the constitutional issues. It is only in the event that the applicants fail to secure a declaration of unconstitutionality that I will then proceed to consider the question of a declaration of incompatibility and the ECHR.
The guarantees contained in Article 40.3.1 and Article 40.3.2
4. I do not propose to dwell on what is, strictly speaking, the first question which might otherwise be thought to arise, namely, whether the Constitution (and particularly Article 40) serves to guarantee litigants an effective remedy. Of this there can be absolutely no doubt. As I pointed out in my judgment in S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 31 the combined effect of Article 34.1, Article 34.3.1, Article 40.3.1 and Article 40.3.2, coupled with a wealth of corresponding case-law, is to demonstrate that the Constitution provides litigants with such a right:-
“These examples – which are certainly by no means exhaustive – all share one common theme, namely, that the courts will ensure the remedies available to a litigant are effective to protect the rights at issue and that our procedural law (including all legislation restricting or regulating access to the courts) respects basic fairness of procedures and is neither arbitrary or unfair. Article 34.3.1, Article 40.3.1 and Article 40.3.2 thus reflect the same basic premise as that contained in Article 13 ECHR, i.e., the guarantee of an effective remedy. That, after all, is the central premise of what the express words of Article 40.3 – the vindication of rights in the case of injustice done – are all about.”
5. It is true that, unlike Article 13 ECHR, Article 40 does not actually use the term “effective remedy”, but rather addresses itself to the concept of vindication of rights. It is, of course, merely a truism to observe that constitutional rights cannot be vindicated in the absence of an adequate remedy, as the wealth of constitutional case-law on the point amply demonstrates.This difference in approach is simply a question of verbal style – or, if you will, semantics – but it certainly amounts to the same thing. Adapting, therefore, the language of Finlay P. in The State (C.) v. Frawley [1976] I.R. 365, 374 the Constitution guarantees such a right “even if there never had been a European Convention of Human Rights, or if Ireland had never been a party to it”.
6. It might also be observed that in his judgment in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701, 721 Murray C.J. commented that it was “the task of the Courts to ensure that where rights are wrongfully breached that remedies are effective”. These comments are all the more pertinent given that they were uttered in the context of the appropriate test of review in judicial review cases challenging the reasonableness of a ministerial deportation order. The Chief Justice also made similar comments in Carmody ([2010] 1 IR 635, 668) in the context of that plaintiff’s constitutional right to legal aid:-
“[The plaintiff] is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen. As this Court has frequently pointed out, and as Henchy J. repeated in The State (Healy) v. Donoghue [1976] I.R. 325, this court is one of the organs of government. In exercising its judicial functions it must seek to vindicate such rights.”
7. A similar issue also arose in Albion Properties Ltd. v. Moonblast Ltd. [2011] IEHC 107, albeit in a very different context. Here the question was whether this Court had the jurisdiction to grant a mandatory interlocutory injunction to require a commercial tenant – who was manifestly in default with regard to rental payments – to yield up possession. I rejected the argument that there could be any such jurisdictional bar, saying:-
“Any supposed jurisdictional bar which prevented the court from granting injunctive relief in an appropriate case to require a defaulting tenant to yield up possession of a commercial tenancy would be at odds with duty imposed on the courts by Article 40.3.2 of the Constitution to ensure that the property rights of the plaintiff landlord are appropriately vindicated in the case of injustice done. The courts are under a clear constitutional duty to ensure that the remedies available to protect and vindicate these rights are real and effective: see, e.g., the comments of Kingsmill Moore J. in The State (Vozza) v. O’Floinn [1957] I.R. 227 at 250; those of Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 and the authorities set out in my own judgment in S v. Minister for Justice, Equality and Law Reform [2011] IEHC 31.”
Against that background, we can now proceed to consider the constitutional question. The applicants contend, first, that these common law rules fail to provide an effective means of vindicating constitutional rights in the present case in that the High Court cannot itself decide whether the deportation order trenches on constitutional rights and, second, that this Court cannot receive and act upon new evidence not otherwise available to decision-maker. At the outset I have to record some unease in the manner in which I am being invited to decide this issue, since in some respects at least it is akin to conducting an abstract review of this question, almost in the manner of an Article 26 reference. It is not clear to me, for example, that the applicants can clearly point to some aspect of the application of these common law rules which in and of itself bars their path to what would otherwise be a successful challenge to the validity of the deportation decision. In some respects, at least, it might have been preferable to await the outcome of the substantive challenge to the validity of the decision itself. But I recognize that there is no straightforward procedural sequence governing the resolution of these issues which is completely satisfactory. In view of this and given that the applicants clearly satisfy the basic locus standi tests prescribed by Cahill v. Sutton [1980] I.R. 269 and given further that all sides have urged me to resolve this issue, I have decided to determine these questions.
First ground of constitutional challenge: Review for reasons of rationality and reasonableness: the appropriate test
8. It is probably unnecessary here to conduct an exhaustive review of the appropriate test for reasonableness and rationality. It would be churlish not to acknowledge that judicial attitudes to this question in this jurisdiction have waxed and waned over the last fifty years or so. In Re O’Laighleis [1960] I.R. 93 the Supreme Court indicated that the courts could only examine the reasonableness of a ministerial decision where something akin to bad faith was established. Over twenty years later that decision was overruled by the Supreme Court in The State (Lynch) v. Cooney [1982] I.R. 337. That case concerned the reviewability of a ministerial decision under the Broadcasting Acts to the effect that a particular broadcast “would be likely to promote, or incite to, crime or would tend to undermine the authority of the State”.
9. The Court held that it was, with O’Higgins C.J. saying that a ministerial decision of this kind ([1982] I.R. 337, 361):-
“must be one which is bona fide held and factually sustainable and not unreasonable.”
10. If Lynch suggested that the courts had to be satisfied that administrative decisions of this kind had to be factually sustainable and reasonable, the subsequent decision of the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 held that the courts could not review on grounds of reasonableness a decision of the planning authorities save where it was clear that there was “no evidence” on which the decision could have been based. Finlay C.J. observed ([1993] 1 I.R. 39, 70):-
“I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.”
11. For some reason Lynch was not referred to in O’Keeffe, despite the former’s seminal status as an absolutely critical decision dealing with the reviewability of ministerial and, by extension, administrative decisions. Perhaps it is for this reason that in some respects these two decisions cannot be easily aligned. If the former decision required that a ministerial decision must be shown to be factually sustainable before the opinion of the Minister could be upheld, this seems at odds with the latter decision inasmuch as it decided that the courts could not interfere – at least in the specialist sphere of planning law – with an administrative decision save in the “no evidence” type cases. This point was made by McKechnie J. in an important judgment, Neurendale Ltd. v. Dublin City Council [2009] IEHC 588 which was delivered virtually on the eve of the Supreme Court’s judgment in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701. In Neurendale, McKechnie J. observed:-
“Thus, although Henchy J. stated in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 that the only circumstances in which logic came into play in applying the test for unreasonableness was if the conclusion reached did not flow from the premises, the decision of the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 qualifies this to some extent and requires that in order to satisfy the court of this fact the applicant must show that the decision-making authority had no relevant material before it which would support its decision.”
12. The decision in O’Keeffe gave rise to – or, at least, inspired – two other developments. The first development was the subsequent articulation of a heightened standard of judicial review whereby the courts could only quash for unreasonableness or irrationality in quite special or – perhaps it would be more accurate to say – extraordinary cases. This development reached its apotheosis with the judgment of O’Sullivan J. in Aer Rianta cpt v. Commissioner for Aviation Regulation (High Court, O’Sullivan J., 16th January, 2003) where he enunciated the relevant test for review in the following terms:-
“the kind of error that produces invalidity is one which no rational or sane decision maker, no matter how misguided, could essay. To be reviewably irrational it is not sufficient that a decision maker goes wrong or even hopelessly and fundamentally wrong: he must have gone completely and inexplicably mad; taken leave of his senses and come to an absurd conclusion. It is only when this last situation arises or something akin to it that a court will review the decision for irrationality.”
13. The effect of this particular decision was that, as Gilligan J. noted in Byrne v. Judge O’Leary [2006] IEHC 412 “the unreasonableness standard has been heightened even further in recent times”. Yet such development did not meet with universal approval: thus, for example, in his judgment in Neurendale McKechnie J. observed that he would not endorse Aer Rianta, saying that it was not possible “to have as a requirement of unreasonableness insanity before the courts may intervene.” One would also have to observe candidly that if Aer Rianta remained the test, this would be tantamount to saying that a decision of this kind could be challenged on reasonableness grounds only where something akin to bad faith had been established, an extremely difficult test to surmount. It would be hard to see how such a principle could be aligned with the classic re-statement of the law articulated by O’Higgins C.J. in Lynch. We must, however, break off this part of the narrative to take account of the second development of which we have just spoken.
14. The second development – itself also illustrated by the thinking in Aer Rianta – was deference to specialized bodies. Quite independently of the appropriate presumption of validity which decisions taken by administrative agencies and government departments properly enjoy “by virtue of the respect which one great organ of the State owes to another” (Buckley v. Attorney General [1950] I.R. 67 at 80, per O’Byrne J.), it is quite clear that decisions which emanate from agencies or persons with proven and established technical and administrative skills enjoy a special degree of deference.
15. We have perhaps forgotten that this is far from a relatively new concept. In Philadelphia Storage Battery Co. v. Controller of Industrial and Commercial Property [1935] I.R. 575 Kennedy C.J. said – admittedly in the context of a statutory appeal – of the decisions of a specialist administrative official such as (what was then described as) the Controller of Industrial and Commercial Property ([1935] I.R. 575, 593):-
“The Courts in England have, however, indicated very strongly that they will pay great attention to the decision of a specialist officer like the Controller. No doubt the degree of such attention will vary with the length of time he has held his office and his consequent experience, and the qualifications and the known ability of the officer. If the English courts went to the extent of accepting his view as the exercise of a judicial discretion by which the Court should be bound, we could not follow them in this country, as that would, in my opinion, be contrary to a constitutional principle which binds us, and which we must be jealous to maintain. In my opinion, therefore, while we read the views of the Controller with respect and in the present case with admiration of the clarity and ability of his statement of them, we are quite free to form our own opinion untrammelled by them.”
16. The question of deference to decisions of specialist bodies was, of course, also present in O’Keeffe where Finlay C.J. stressed ([1991] 1 I.R. 39, 71):-
“Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.”
17. This principle of deference was then applied in a series of important cases where the decision-maker plainly enjoyed such expertise. Examples here include M. & J. Gleeson Ltd. v. Competition Authority [1999] 1 I.L.R.M. 401, Orange Communications Ltd. v. Director of Telecommunications Regulation (No.2) [2000] 4 IR 159, Carrickdale Hotel v. Controller of Patents [2004] 3 IR 410, Ashford Castle v. Labour Court [2007] 4 IR 70 and Rye Investments Ltd. v. Competition Authority [2009] IEHC 140.
18. Quite independently of questions of technical expertise, there are naturally certain types of issues which do not admit of easy resolution if ordinary legal standards and principles or even conventional legal reasoning are to be employed. Thus, in the sphere of planning and development, the resolution of questions involving technical engineering assessments, sustainability, aesthetics and even taste probably admit of limited judicial involvement. This is, as Denham J. pointed out in Meadows, quintessentially the kind of decision attracting the specialized deference which the Supreme Court had in mind in O’Keeffe. But this approach would have a much more limited (if, indeed, any) application in many other spheres of the planning process. At the other end of this spectrum, for example, the question of whether the compulsory acquisition of land was objectively necessary in the public interest squarely engages the substantive protection of property rights and as Geoghegan J. so carefully explained in Clinton (No.2), these rights would not be adequately protected by a test which was satisfied by showing that there was a reasonable basis for the decision.
19. So far as asylum and immigration decisions are concerned, much might depend, in the words of Kennedy C.J. in Phildadelphia Battery, on the experience and expertise of the particular decision-maker in the context of the decision at hand. One can occasionally, for example, encounter issues of credibility in the asylum area where the underlying facts present issues arising from complex societal and group behaviour, the dimensions of which outsiders struggle to understand: issues arising from Albanian blood feuds are, perhaps, a good case in point: see, e.g., ML v. Refugee Appeal Tribunal, High Court, 21st January, 2011. The resolution of these questions would undoubtedly benefit from decision-makers possessing specialist knowledge and understanding of the society and behaviour in question. If, in this sort of unusual case, the decision maker were shown to have this type of expertise, then, of course, the courts should generally defer to it.
20. There might well be other cases where, for example, the decision maker had lived for some time in the foreign country in question and was thoroughly familiar with its own particular cultural, social, political and religious norms and where such deference was possibly warranted. But where, as in the general run of things, the decision maker has not even visited the country in question and is, for example, entirely reliant on country of origin information to assist with a credibility assessment, any doctrine of curial deference would seem misplaced. If, for example, an African administrator was to claim a specialist knowledge of contemporary Irish political, social and cultural history based solely on his or her having read and consulted US State Department country of origin information regarding Ireland, this would be justly viewed here with some scepticism, not to speak of outright incredulity. Why should the position be viewed any differently in the case of those Irish decision-makers whose knowledge of the political and social affairs of specific African countries is derived almost exclusively from similar sources?
21. At all events, the present case is not one where the decision maker is called upon to make a judgment about the plausibility of an asylum claim by reference to specific internal events within the country of origin. Rather, what is fundamentally at issue here in the present proceedings is the likely effect of the deportation on the applicant’s family in general and children (including step-children) in particular and, by extension, whether it is realistic in the circumstances to expect the remainder of the family to travel to Nigeria were such an order to take effect. It cannot be said that administrative decision-makers enjoy a specialist knowledge or expertise in relation to such matters. Besides, these decisions engage fundamental rights under Article 41 of the Constitution, the protection of which is the solemn duty of this Court. Any rule of law which purported to constrain this Court from protecting these rights in circumstances where it could only interfere where there was “no evidence” to justify a factual conclusion reached would simply be at odds with these constitutional obligations. A test of this nature in the sphere of constitutional rights would thus fall to be condemned as unconstitutional in the light of the obligations imposed on the State by Article 40.3.1 and Article 40.3.2 to vindicate these constitutional rights.
22. It follows, therefore, that whatever be the parameters of the curial deference doctrine, it has no relevance in the present case. While the decisions under review are presumed to be valid unless and until quashed and are fully entitled to the respect which is rightfully due, it cannot be said that any doctrine of heightened deference is applicable.
23. Returning now to the narrative regarding the general standard of review, all of these questions were comprehensively examined by the Supreme Court in Meadows. In this case the Court concluded that the general proportionality applied to judicial review of administrative decisions. But as Mr. Maurice Collins SC, counsel for the Minister, so aptly noted in his submissions, the decision in Meadows did not simply drop out of the sky. It is perfectly clear that for quite some time there was increasing judicial unease with the manner in which O’Keeffe had come to be applied in practice. Any number of instances of this judicial unhappiness could be cited, but it perhaps suffices to refer three representative examples of a trend which had been welling up prior to the decision in Meadows.
24. The first decision is that of McKechnie J. in Holland v. Governor of Portlaoise Prison [2004] IEHC 208, [2004] 2 IR 573. In this case the applicant prisoner challenged the validity of a prison policy which restricted his access to the media. McKechnie J. first indicated why he considered that O’Keeffe had modified the Keegan test:-
“In the context of reviewing a decision of An Bord Pleanála, the Supreme Court, through the judgment of Finlay C.J., in O’Keeffe added, what appears to be quite an important additional element to the above quoted formulation of this principle. The learned Chief Justice said that for an applicant to succeed in quashing a decision of that authority on this ground, he would have to establish ‘to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.’”
25. McKechnie J. then continued:-
“It seems to me that both Keegan and O’Keeffe, but in particular the latter, were based in a factual context totally distinguishable from the present case, which case raises issues of the impugned decisions being invalid as either being outside the scope of rr. 59 and 63 [of the Prison Rules 1947] and/or as constituting a violation of the applicant’s constitutional rights. If O’Keeffe was to apply, it would mean that this court should ask itself whether or not the Governor had before him any relevant material which would support its decision. I do not believe that when the exercise of a fundamental right such as the right to communicate is at the core of an application that this test is either proper or appropriate. Accordingly, I do not propose to decide this case on either the basis of Keegan or O’Keeffe.”
26. The next example is supplied by I. v. Minister for Justice, Equality and Law Reform [2007] IEHC 180, [2008] 1 IR 208. This concerned a case like the present one – namely, an application to quash on reasonableness grounds an immigration decision – McGovern J. stated:-
“Since the purpose of the [Refugee Act 1996], is, inter alia, to give effect to the Geneva Convention and other related conventions on the treatment of refugees I think the test of “anxious scrutiny” is one which the courts should use as well as the O’Keeffe principles when considering matters of this kind. Of course if a decision is made on irrational grounds it will be susceptible to legal challenge. But there may be cases which might not come within the O’Keeffe definitions of irrationality but might legitimately fall to be reviewed by the courts. It seems to me that this could arise in circumstances of manifest error disclosing a reasonable possibility on the facts that the original decision was wrong.”
27. Finally, in Clinton v. An Bord Pleanála (No. 2) [2007] IESC 19, [2007] 4 IR 701, 741 Geoghegan J. observed:-
“It is axiomatic that the making and confirming of a compulsory purchase order to acquire a person’s land entails an invasion of his constitutionally protected property rights. The power conferred on an administrative body such as a local authority or An Bord Pleanála to compulsorily acquire land must be exercised in accordance with the requirements of the Constitution, including respecting the property rights of the affected landowner (East Donegal Co-Operative v. Attorney General [1970] I.R. 317). Any decisions of such bodies are subject to judicial review. It would insufficiently protect constitutional rights if the court, hearing the judicial review application, merely had to be satisfied that the decision was not irrational or was not contrary to fundamental reason and common sense.”
28. At all events, all of the pre-existing case-law must now be reviewed in the light of the seminal decision in Meadows. While it is, perhaps, too early to evaluate the precise significance of the decision, two things emerge clearly. First, it is plain that a majority of the Court was prepared to apply a general proportionality test in respect of all decisions affecting fundamental rights.
29. Second, it is equally clear that the O’Keeffe test has been re-interpreted and clarified to take fuller account of the earlier judgment of Henchy J. in Keegan: see generally Delany and Donnelly, “The Irish Supreme Court inches towards proportionality review” (2011) Public Law 9. In Keegan Henchy J. had stressed that the courts could intervene to quash on reasonableness grounds where the conclusion simply did not follow from the original premise. As Fennelly J. put it ([2010] 2 IR 701 at 827):-
“I prefer to explain the proposition laid down in the Keegan and O’Keeffe cases, retaining the essence of the formulation of Henchy J in the former case. I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. I use the word, ‘substantive’, to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision-maker. This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases, the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J. The applicant must discharge that burden by producing relevant and cogent evidence.
This does not involve a modification of the existing test as properly understood. Rather it is an explanation of principles that were already implicit in our law.”
30. While the difference is, in some respects, a question of semantics – as Fennelly J. acknowledged ([2010] 2 IR 701, 825) – there is nonetheless a clear difference in principle between saying on the one hand that a decision is unreasonable because there is “no evidence” for the conclusion reached, while on the other quashing a decision because it does not flow from the original premises of the decision maker – the very point which McKechnie J. had made in both Holland and Neurendale. It will be a rare case indeed where there is absolutely no evidence to support a particular proposition. By contrast, there may well be many instances where there is some evidence to justify a particular decision, but where the ultimate conclusion simply does not flow from the original premise (Keegan) or but nonetheless falls to be quashed for lack of proportionality (Meadows).
31. In any event, post-Meadows this is a debate which scarcely matters, at least in those cases where – as here – the decision engages and affects constitutional rights, such as the family rights protected by Article 41 and, by extension, Article 8 ECHR. In this regard it would be difficult to improve on the succinct and comprehensive summary of the present law contained in the judgment of Cooke J. in ISOF v. Minister for Justice, Equality and Law Reform (No. 2) [2010] IEHC 457. Here the question was whether it was necessary for this Court to give a certificate of leave to appeal to the Supreme Court under s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 in order to clarify aspects of Meadows.
32. Cooke J. concluded that the law in this regard had been settled “with sufficient clarity” by the decision in Meadows so that a certificate was unnecessary. Having referred to the passage from the judgment of Fennelly J. just quoted, Cooke J. continued:-
“Where the validity of an administrative or quasi judicial decision comes before the court on judicial review, the Court’s starting point is the decision itself; the basis upon which it has been reached and the process by which it has been decided. It does not have before it an appeal against the decision, much less a merits-based appeal by way of re-adjudication of the original issue. Its jurisdiction is based upon the content of the decision and the law applicable thereto. Where the challenge to the decision is based upon the assertion that it has the effect of intruding disproportionately upon the fundamental rights of those affected by it, it is the duty of the court to assess whether the applicant demonstrates that it is disproportionate in the sense of being irrational or unreasonable according to the Keegan/O’Keeffe test. It does so by reference to the evidence, information and documentation available to or procurable by the decision maker at the time. It does not take account of new information or evidence which has become available since the decision was made. (In the case of a deportation order the remedy in that regard lies in an application for revocation under s. 3(11) of the Immigration Act 1999, a decision on which is itself susceptible of judicial review for proportionality where necessary.) In the judgment of the Court no material difference exists between the evaluation of proportionality as regards the interference with “qualified rights” (as in the present case) and “absolute rights” (as in the case of Meadows). If constitutional rights are in issue (whether absolute or qualified) it is the function and duty of the High Court to vindicate them. The same can be said for rights entitled to protection under the European Convention of Human Rights and the need for the High Court, in compliance with Article 13 of the Convention, to provide an effective remedy for that protection.
In other words, if the High Court has a constitutional obligation to vindicate personal constitutional rights in the face of administrative or quasi judicial decisions; and if it has by default a statutory duty under the European Convention on Human Rights Act 2003 to ensure protection under the Convention for rights not otherwise guaranteed by the Constitution, so be it. The remedy of judicial review under O. 84 of the Rules of the Superior Courts is sufficiently comprehensive and flexible in the exercise of the jurisdiction of the High Court to ensure that both of those objectives are met. The mistake is to confuse the jurisdictional rules and procedural incidents of the judicial review remedies with the manner which the criteria for the review fall to be applied.
The common law remedies of judicial review and judicial practice in their application have, in the view of this Court, evolved differently in the constitutional framework of this State (and particularly under the influence of the judgment of the Supreme Court in East Donegal Co-Operative Ltd. v. Attorney General [1970] IR 317), as compared with other common law jurisdictions and particularly that of the United Kingdom both before and since the enactment there of the Human Rights Act 1998. Nevertheless, the potential for evolution of the criteria can be seen as reflected in, for example, judgments such as that in which the House of Lords in the United Kingdom held in the context of judicial review procedures in that jurisdiction involving the application of the criterion of proportionality under the Convention that , “…no shift to a merits based review” is required but “the intensity of review is greater than was previously appropriate , and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence…” and thus goes “beyond that traditionally adopted to judicial review in a domestic setting.” (See the speech of Lord Bingham of Cornhill in R(SB) v Governors of Denbigh High School [2007] 1 AC 100, 116).
In this jurisdiction the Supreme Court has, of course, rejected the need to alter the “intensity” or the level of review applied by the Court in judicial review in this way. It remains the case however, as illustrated by the passage cited from the judgment of Fennelly J. [in Meadows] that judicial practice in the exercise of the judicial review function is capable of adapting to accommodate the need to examine the substantive content of a decision having impact on fundamental rights in order to evaluate the lawfulness of its encroachment on those rights without thereby supplanting the administrative decision with a new decision of its own.
Thus, while the judicial review remedies remain unchanged – although significantly more flexible and comprehensive in the reform of Order 84 in 1986 – and the procedural and evidential rules for their application are constant; the criteria by which they are applied are capable of evolving in order to accommodate rights to protection such as those created by the Constitution or the Act of 2003. By examining the substance of the effect of an interference brought about by an administrative decision on fundamental rights of an applicant for judicial review in order to assess whether it goes beyond a lawful encroachment, the Court is not substituting its own view of what the decision ought to be but is testing it by reference to what is objectively reasonable and commonsense.”
33. To this might be added the observation that the courts will also quash a decision which is vitiated by material error of fact: see, e.g., Hill v. Criminal Injuries Compensation Tribunal [1990] I.L.R.M. 36; A.B.-M. v. Minister for Justice, Equality and Law Reform, High Court, 23 July 2001; AMT v. Refugee Appeal Tribunal [2004] 2 IR 607; L. v. Minister for Justice, Equality and Law Reform [2010] IEHC 362; ML v. Refugee Appeal Tribunal, High Court, 21st January 2011 and HR v. Refugee Appeal Tribunal [2011] IEHC 151.
Conclusions on the first constitutional issue
34. In summary, therefore, it is clear that, post-Meadows at any rate, it can no longer be said that the courts are constrained to apply some artificially restricted test for review of administrative decisions affecting fundamental rights on reasonableness and rationality grounds. This test is broad enough to ensure that the substance and essence of constitutional rights will always be protected against unfair attack, if necessary through the application of a Meadows-style proportionality analysis: see, e.g., decisions as such as Holland, Clinton (No. 2) and S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 92. This, after all, was a feature of the promise of Walsh J. in East Donegal: see [1970] I.R. 317, 349:-
“A person exercising his constitutional right to litigate may be assured that the resources of the Courts established under the Constitution are not so limited that they could facilitate, or that they would be exercised in any way which would facilitate, the concealment of an infringement of constitutional rights or the masking of injustice.”
35. Against that background, it is clear that the common law rules of judicial review satisfy the constitutional requirements of Article 40.3.1 and Article 40.3.2 in that they must in particular provide an adequate remedy to vindicate constitutional rights.
Second constitutional issue: The admission of new evidence
36. The second objection to the adequacy of the judicial review process relates to the admission of new evidence. It is contended that in order for the remedy of judicial review to be effective this Court ought to be to receive new evidence which (generally speaking) post-dates the decision and act itself on that evidence.
37. It is important, however, to bear in mind the reason for the rule that, generally speaking at any rate, the court in judicial review proceeding will not receive new evidence. So far as asylum claims are concerned, Article 28 of the Constitution assigns the executive power to the Government. As the Supreme Court made clear in Laurentiu v. Minister for Justice, Equality and Law Reform [1999] 4 IR 26, deportation and cognate immigration questions squarely involve the executive power, albeit that the exercise of this power is regulated by the Immigration Act 1999. Given that decisions regarding asylum involve the exercise of executive power, it would not be constitutionally permissible to assign the exercise of such powers to the judicial branch: see TD v. Minister for Justice, Equality and Law Reform [2001] 4 I.R. 287. The practical effect of this is that the actual decision whether to deport or not must remain with the executive branch, albeit, of course, that a decision to deport might in practice be prevented by a judicial decision.
38. It was at one stage rather faintly argued that in order to have an effective remedy this meant that the ultimate decision on the deportation question would have to be taken by this Court itself. That submission is, however, unsustainable for the reasons just advanced, since the judicial branch could not constitutionally be invested with executive powers. This in itself does not mean that the Oireachtas could not elect to vest immigration powers in the judicial branch. It is, however, rather to observe that in the event that this were to occur, the judicial branch would be confined to applying purely legal principles to determine such questions by reference to standards prescribed by law by the Oireachtas. Any attempt to vest the judicial branch with functions in the immigration sphere akin to the determination and application of purely policy questions would, however, represent an unconstitutional violation of the separation of powers, as it would be tantamount to vesting the judicial branch with decision making powers of a type, style and nature which Article 28 reserves to the executive branch.
39. If, however, this Court could receive and act upon new evidence it would cross a borderline between review and appeal. If the Court acted upon new evidence, then it would no longer be simply reviewing the decision already taken, but it would be acting on foot of new information of which the decision-maker never stood possessed. Subject to the reservations just expressed with regard to reposing executive style powers and functions on the judiciary, there could be no objection in principle to vesting the judicial branch with an appellate function in respect of immigration decisions. In such circumstances, it might well be open to the court to receive new evidence and even to act on it: see, e.g., the judgment of Lynch J. in Balkan Tours Ltd. v. Minister for Communications [1988] I.L.R.M. 101.
40. Nevertheless the fact that the court in judicial review cannot receive new evidence is simply an incidence of the nature of the proceedings. If new evidence could be received, they could cease to be in the nature of a review, but would then partake of the character of an appeal. The fact that judicial review does not admit of this does not of itself mean that the State has thereby failed to vindicate the applicants’ constitutional rights given that there exists a flexible and powerful remedy whereby such rights are protected and the rule of law upheld.
41. Given that, subject to limited exceptions, immigration decisions can be challenged only by way of judicial review under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, I agree that if there were no mechanism whereby material facts which post-date the initial decision could not be acted on by the executive such a lacuna would have represented a failure by the State to provide a procedure whereby applicants’ constitutional rights could be adequately vindicated. Had there been such a lacuna, then in line with the Supreme Court’s decision in Carmody, in these circumstances the applicants would in principle have been entitled to a declaration to this effect.
42. The need for a mechanism whereby new facts can be assessed might be especially true in the general sphere of family rights under Article 41, where fresh developments such as marriage, the birth of children and the increasing extent to which Irish born children had integrated into the school system might all be intensely relevant to the Minister’s decision in any given case.
43. But, as it happens, there is such a mechanism. In the immigration sphere, the applicants have a tailor-made remedy which can address new post-decision facts, namely, the power to revoke the deportation order under s. 3(11) of the 1999 Act. Should, for example, the Minister fail to revoke the deportation order in the light of new material facts, then this Court could quash that decision in an appropriate case: see, e.g., S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 92.
44. For these reasons I cannot accept that the remedy of judicial review must be regarded as an inadequate method of vindicating constitutional rights by reason of the fact that new evidence is not admissible in judicial review proceedings once regard is had to the fact these applicants can avail in appropriate cases of the protections contained in s. 3(11) of the 1999 Act so that new, material evidence can be considered by the Minister.
Whether the common law rules of judicial review satisfy the requirements of Article 13 ECHR
45. It remains to consider the compatibility of these rules with Article 13 ECHR, given that the applicants have also sought a declaration of incompatibility under s. 5(2) of the European Court of Human Rights Act 2003. This is a matter which has already been considered by this Court in B. v. Minister for Justice, Equality and Law Reform [2010] IEHC 296 where Cooke J. stated:-
“….the jurisdiction of the High Court in the review of administrative decisions including deportation orders is at least as ample by way of effective remedy as that of the administrative courts of continental jurisdictions or, for that matter, the Court of Justice of the European Union under Article 263 of the Treaty on the functioning of the Union. Furthermore, insofar as the concept of ‘effective remedy’ extends to an entitlement to compensation where a right or freedom has been violated, the High Court has jurisdiction in the exercise of its judicial review function to award damages. Thus the scope of the jurisdiction of the High Court in reviewing the legality of a decision made under s. 3 of the 1999 Act clearly fulfils the criteria established by the case law of the Strasbourg Court for the provision of an effective remedy before a national authority in accordance with Article 13. The High Court is independent and its orders in judicial review are binding and enforceable. Furthermore, as is made clear by the judgment of Denham J. in the Supreme Court in the Oguekwe case, the High Court in reviewing the validity of a deportation order is not only entitled but obliged to ensure that the order has been validly made in the light of any substantive arguments raised based upon alleged violation of Convention rights and freedoms.”
46. I respectfully agree with these views. I would merely add that this issue was subsequently addressed by the European Court of Human Rights in Kay v. United Kingdom [2010] ECHR 1322. Here the Court held that the fact that the applicants were not entitled to challenge a decision of the local authority to repossess a dwelling on the basis that it constituted a disproportionate attack on their right to family life was itself a breach of Article 8. The Court added that it welcomed:-
“…the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of Article 8. A number of their Lordships in Doherty [v. Birmingham City Council [2008] UKHL 57, [2009] 1 AC 307] alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants’ to encompass more than just traditional Wednesbury grounds (see Lord Hope at paragraph 55; Lord Scott at paragraphs 70 and 84 to 85; and Lord Mance at paragraphs 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the Court considers that at the time that the applicants’ cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann, the Court agreed with the minority approach although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue (see McCann, cited above, § 54). To the extent that, in light of Doherty, the gateway (b) test set out by Lord Hope in Kay should now be applied in a more flexible manner, allowing for personal circumstances to be relevant to the county court’s assessment of the reasonableness of a decision to seek a possession order, the Court emphasises that this development occurred after the disposal of the applicants’ proceedings.
In conclusion, the Kay applicants’ challenge to the decision to strike out their Article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the instant case.”
47. In other words, the European Court held in Kay that the UK had been in breach of Article 8 (and, by implication, Article 13) because at the time a full blown challenge to the validity of an administrative decision on proportionality grounds simply was not permitted as the law in the United Kingdom then stood. Of course, in this jurisdiction this step was had been already anticipated by Meadows.
48. But what is perhaps a more significant aspect of Kay is that it clearly signals that judicial review providing for a proportionality analysis of administrative decisions affecting fundamental rights will fully satisfy the Convention’s requirements. Whatever might have been the case prior to Meadows, it is obvious in the wake of that decision that in this respect the scope of review articulated by our courts in cases such as Meadows and ISOF (No.2) clearly meets this standard.
49. It follows, therefore, that there is no basis for contending that these common law rules of judicial review – certainly as interpreted by Meadows – fails to satisfy the ECHR’s requirements with regard to an effective remedy.
New evidence and Article 13 ECHR
50. It remains to consider the question of the reception of new evidence and whether the inability of the courts to receive such evidence in judicial review renders that remedy basically ineffective to protect the rights of applicants in such cases. At the outset, it is probably important to recall my observations in Albion Properties where I pointed out in connection with Article 13 ECHR that:-
“the courts are not an “organ of the State” for the purposes of s. 3(1) of the European Convention of Human Rights Act 2003, with the result that the courts are not, apparently, as such under any direct statutory obligation to perform their functions in a Convention compatible manner. The question of whether the courts are under any duty independently of the constitutional considerations which I have just mentioned to re-fashion or re-shape existing remedies in order to secure compliance with Article 13 ECHR is a matter which must await an appropriate case for resolution.”
51. But independently of this, this Court could, of course, nonetheless grant a declaration pursuant to s. 5(2) of the 2003 Act that the failure to provide an adequate remedy amounted to a breach of Article 13 ECHR were this to be warranted in any given case.
52. It is plain, however, from the decision of the European Court of Human Rights in Maslov v. Austria [2008] ECHR 546 that such a declaration would not be warranted in present case. In Maslov one of the questions was the extent to which Contracting States were obliged to take account of events which post-dated a deportation decision. On this point the Court observed (at para. 93):-
“In this connection the Court would point out that its task is to assess the compatibility with the Convention of the applicant’s actual expulsion, not that of the final expulsion order. Mutatis mutandis, this would also appear to be the approach followed by the European Court of Justice which stated in its Orfanopoulos and Oliveri judgment that Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities ….Consequently, in such cases it is for the State to organise its system in such a way as to be able to take account of new developments. This is not in contradiction with an assessment of the existence of “family life” at the time when the exclusion order becomes final, in the absence of any indication that the applicant’s “family life” would have ceased to exist after that date ….. Even if it had done so, the applicant could still claim protection of his right to respect for his “private life” within the meaning of Article 8…”(emphasis supplied)
53. As we have already noted in connection with the constitutional issue, the Oireachtas has in fact provided via s. 3(11) of the 1999 Act such a mechanism for reviewing new facts. It is clear from Maslov that all that it necessary that Contracting States provide such a remedy, albeit that the details of the mechanism are quintessentially matters for the state in question. So far as this State is concerned, s. 3(11) is the designated remedy for this purpose.
54. Since the Oireachtas has accordingly provided an adequate remedy whereby new facts in deportation cases such as the present can be taken into account, it follows that the State is not in breach of Article 13 ECHR and no question of a declaration of incompatibility therefore arises.
Conclusions
55. In summary, therefore, I have concluded as follows:-
A. Article 40.3.1 and Article 40.3.2 of the Constitution require the State to vindicate constitutional rights. This of necessity requires the State to provide a mechanism where such rights are adequately vindicated by means of an adequate remedy and, where appropriate, the courts will take on the task of fashioning such a remedy.
B. Any rule of law which purported to constrain this Court from protecting constitutional rights in circumstances where it could only interfere where there was “no evidence” to justify a factual conclusion reached by a decision-maker would simply be at odds with these constitutional obligations. A test of this nature in the sphere of constitutional rights would thus fall to be condemned as unconstitutional in the light of the obligations imposed on the State by Article 40.3.1 and Article 40.3.2 to vindicate these constitutional rights.
C. In the wake of the Supreme Court’s decision in Meadows it can no longer be said that the courts are constrained to apply some artificially restricted test for review of administrative decisions affecting fundamental rights on reasonableness and rationality grounds. This test is broad enough to ensure that the substance and essence of constitutional rights will always be protected against unfair attack, if necessary through the application of a Meadows-style proportionality analysis.
D. In the light of the decision in Meadows, it is clear that constitutional rights – including the family rights protected by Article 41 at issue here – are adequately vindicated by the common law rules of judicial review.
E. In judicial review proceedings it is not permissible for this Court to receive and act on new evidence, since to do so would be to cross a border between appeal and review. If there were no mechanism whereby material new facts which impacted significantly on constitutional rights emerged after the relevant administrative decision could be reviewed, then such a lacuna would amount to a failure to vindicate constitutional rights for the purposes of Article 40.3 and the Court might have to give a declaration to this effect.
F. As it happens, however, there is such a mechanism, in that s. 3(11) of the 1999 Act allows the Minister to revoke a deportation order. In these circumstances, there is no basis for granting a Carmody-style declaration in respect of any legal lacuna and still less is there any basis declaring the common law rules of judicial review to be unconstitutional on this account.
G. It is clear from the decision of the ECHR in Kay v. United Kingdom that Meadows-style judicial review satisfies the requirements of Article 13 ECHR. So far as the receipt of new evidence is concerned, is likewise clear from Maslov v. Austria that all that is necessary that there is a mechanism whereby new material evidence can be evaluated by administrative decision-makers. As we have noted, there is such a procedure provided by s. 3(11) of the 1999 Act.
H. For these reasons, there is no basis for granting a declaration of incompatibility pursuant to s. 5(2) of the 2003 Act.
Mapp v Gilhooley
[1991] ILRM 695
Finlay CJ
This is an appeal by the defendant against an order made in the High Court by Barr J on 7 November 1989 directing that the plaintiff should recover against the defendant a sum of £8,000 damages for personal injuries suffered by reason of the negligence of the defendant.
The claim arose out of an accident alleged to have occurred in the school playground managed by the defendant in Sligo on 14 May 1986.
The defendant, immediately after the decision in the High Court, served a notice of appeal against the finding of negligence, based on the following grounds.
1. The learned trial judge erred in fact and in law in finding that the defendant was negligent by himself, his servants or agents.
2. The said finding was against the evidence and against the weight of the evidence.
3. The learned trial judge erred in law in preferring the unsworn evidence of the minor plaintiff to the sworn evidence of the defendant’s witness.
4. The learned trial judge erred in the law and in fact in holding that the level of supervision was not adequate in the circumstances.
At the commencement of the hearing of the appeal the defendant applied to add a further ground of appeal, having apparently notified the plaintiff of his intention so to do some time in May of 1990, and having within a very recent time obtained the agreement of the plaintiff.
Such a procedure is inappropriate and any party seeking to extend the grounds of appeal to be submitted to the court before this Court should, ordinarily, speaking, obtain an order, whether by consent or otherwise, amending the notice of appeal in sufficient time to enable members of the court, when considering the documents which are read before the hearing, to be aware of the issues that are to be raised.
The additional ground which was sought to be added and which was by the order of the court permitted to be added was as follows:
That the trial was not in accordance with law and that the trial judge was wrong in law in permitting the plaintiff to give evidence when he was unsworn and incompetent as a witness.
At the commencement of the hearing of this appeal counsel on behalf of the defendant abandoned all the other grounds of appeal that had been put forward and confined his submissions to this last additional ground.
The facts
The facts relevant to this ground of appeal, as appear from the transcript of the trial, are as follows. After the case had been opened to the learned trial judge who sat without a jury, counsel for the plaintiff stated his intention of calling the plaintiff as a witness and the following discussion took place:
Barr J: What age is Jude now?
Mr Whelehan: He is eight now, my lord.
Barr J: Jude, in the Catholic religious classes did they tell you all about an oath? Did you ever hear of an oath?
Plaintiff: No, sir.
Barr J: You did’nt?
plaintiff: No, sir.
Barr J: What am I going to do with Jude?
Mr Whelehan: I think that if your lordship heard his evidence and judge it as best you can.
Barr J: You know, Jude, that it is very important that you tell the truth about what happened in this accident when you got hurt? You know that it is very important that you tell the truth about what happened that day, and I’m sure you will. So, we will carry on?
No objection was taken by counsel on behalf of the defendant and it appears from the transcript that the next matter was that direct examination of the infant plaintiff commenced. This was followed by cross-examination of the infant plaintiff and a number of other witnesses, all sworn to give evidence, gave evidence concerning the issue of liability.
It is clear from the transcript that the plaintiff’s claim that his injuries were caused by negligence in a failure adequately to supervise the playground, entirely rested upon an assertion that for some appreciable time before he fell two groups of boys were formed into different ‘trains’ which purposely collided, one with the other, resulting in his fall and injury. The plaintiff was the only person at the trial to give that account of how he sustained his injuries.
Two of the teachers who were involved in supervision of the playground at the time gave evidence to the effect that such a form of playing would have been dangerous and that if they had observed it they would have stopped it. Neither of them actually saw the plaintiff fall or receive his injury, but both stated that it was improbable, having regard to their recollection, that his account of how it occurred could have been correct.
At the conclusion of all the evidence counsel on behalf of both the plaintiff and defendant addressed the learned trial judge, and counsel on behalf of the defendant addressed him on the basis that he should prefer the sworn testimony of the two teachers to the account given unsworn by the infant plaintiff.
The learned trial judge in the course of his judgment firstly stated as follows:
The plaintiff, who is now eight years of age, gave evidence at the trial. Although he was not sworn because he had not yet learned the meaning of an oath, I am satisfied that he understood the importance of the occasion and the necessity for telling the truth. He is a remarkably bright and intelligent boy who had no difficulty in giving evidence.
The learned trial judge then continued to review the ‘evidence’ which had been given by the infant plaintiff and that which had been given by Mrs Sheehan and Mrs Brennan, the teachers who were supervising the playground. Having done so, and having set out the legal obligation of the manager of the school concerning the supervision of the children, in a manner to which no objection has been taken, the learned trial judge stated as follows:
I am satisfied that the plaintiff has given in evidence a truthful, reliable account of how the accident happened and of the circumstances which gave rise to it …. I accept the plaintiff’s evidence that he and other boys in the junior section were playing that game (‘trains’) for a significant period which was sufficiently long, prior to the accident, to allow one or other or both supervising teachers to see what was happening and to end it before the accident occurred if they had been keeping a reasonable watch. It follows, therefore, that the defendant’s servants were negligent in not supervising the children adequately and that the plaintiff is entitled to succeed.
The submissions on this appeal
On behalf of the defendant it was submitted that it was a fundamental rule of the common law applicable to criminal and civil proceedings alike that the viva voce evidence of any witness in a trial must be given on oath or affirmation.
It was contended that irrespective of whether or not the defendant through his counsel objected to the taking of evidence from this infant plaintiff unsworn that the fact that it was done and was relevant to the decision in the case, made the trial a nullity which this court must set aside. In the alternative, it was contended that in so far as no inquiry appears to have been made by the learned trial judge of counsel for the defendant as to whether he objected to the course which it was proposed to follow with regard to the taking of ‘evidence’ from the infant plaintiff and no opportunity was given to him to make any submission concerning it, that the defendant could not be taken to have acquiesced in the course of conduct which occurred, and that irrespective of whether any such acquiescence could or could not debar him from relying on the want of sworn testimony, he clearly could do so.
On behalf of the plaintiff/respondent it was firstly contended that a rule of common law which provided that the viva voce evidence of a witness in a trial of a civil action must be on oath or affirmation could not have survived the enactment of the Constitution because it would represent either an unjust and invidious discrimination against a person who, being of youthful age, such as the plaintiff, and unable to understand the nature of an oath but otherwise capable of explaining what occurred, had a claim for damages for tort, or, in the alternative, because it represented an impermissible restriction of the infant plaintiff’s right of access to the courts. In the alternative, it was contended on behalf of the plaintiff/respondent that the defendant had by his silence and failure to object acquiesced in the course of conduct which occurred concerning the taking of ‘evidence’ from the infant plaintiff and that he furthermore confirmed that acquiescence in the form of his submissions at the conclusion of all the evidence in the case, and that he cannot now be heard to challenge the validity of the trial on this ground.
In the course of these submissions the court was referred to the case of R. v Brasier (1779) 1 Leach 199; Birch v Sir William Somerville (1852) 2 Ir CLR 67, 243 and Sells v Hoare (1822) 3 Brod & B 232. Reference was also made to the provisions of the Children Act 1908 and the Criminal Justice (Administration) Act 1914.
I have carefully considered these submissions with regard to the legal principles applicable, and I have come to the conclusion that these principles are as follows.
(1) It is a fundamental principle of the common law that for the purpose of trials in either criminal or civil cases viva voce evidence must be given on oath or affirmation. To this principle there are statutory exceptions contained in the Children Act 1908, as extended by the Criminal Justice (Administration) Act 1914, which apply to criminal cases only.
(2) There do not appear to be any relevant statutory exceptions to this general principle applicable to trials in civil cases.
(3) The existence of a practice whereby documentary evidence may by the agreement of parties in civil cases be accepted as proof in the absence of any sworn testimony to establish it, does not constitute any apparent exception to the general principle above set out.
(4) The broad purpose of the rule is to ensure as far as possible that such viva voce evidence shall be true by the provision of a moral or religious and legal sanction against deliberate untruth.
Such a rule cannot, therefore, be inconsistent with the Constitution, either on the basis of being discriminatory or on the basis of being an impermissible restriction of the right of access to the courts.
(5) The fundamental nature of this rule would lead to a conclusion that the consequence of acting upon unsworn viva voce evidence in a civil case would inevitably lead to a mistrial.
(6) An appellant seeking to rely on the admission of unsworn viva voce evidence as constituting a mistrial could only be prevented from so doing:
(a) by estoppel arising from an express or unambiguously implied representation that he was waiving his right to challenge the admission of such evidence by reason of the absence of an oath or affirmation, on which the opposing party has acted to his detriment in a manner which would make the finding of a mistrial an injustice, or
(b) by reason of a finding that for the party concerned to challenge the validity of the trial on appeal on this ground of want of oath or affirmation would constitute a virtual fraud or abuse of the processes of the court.
Applying these principles to the facts of the case before us on appeal, I have come to the following conclusions.
The course taken by the learned trial judge at the suggestion of counsel for the plaintiff and without any opposition from counsel on behalf of the defendant was in law incorrect. The learned trial judge did not have, in my view, any jurisdiction to accept the evidence of this young child unsworn even if both parties had expressly agreed to such a course. This is so even if he concluded that the child was a competent witness, in the sense that he understood what he was saying and was able to give a coherent and truthful account of what had occurred.
What should have been done, I am satisfied, on this occasion, having regard to the answers which the young boy gave to the learned trial judge upon inquiry as to his knowledge of an oath, was to have adjourned the commencement of the case for such time as might be necessary to enable this young child properly to be instructed in the meaning and importance of an oath and then to have sworn him. The conclusions reached by the learned trial judge as to his intelligence and capacity to understand the nature of the occasion on which he was giving an account of the accident would seem to suggest that had that course been adopted it would not have been a matter of any significant difficulty to have instructed him in the meaning of an oath.
I, therefore, conclude as a matter of law that this was a mistrial, and the remaining question necessary to decide for the purpose of determining this appeal is as to whether the defendant by his conduct at the trial is prevented, in accordance with the principles which I have set out, from relying on the existence of a mistrial.
No suggestion was made, nor could it be made, on the facts of this case that the defendant was in any way guilty of fraud or of any abuse of the processes of the court. The issue then is as to whether he is estopped by his conduct from relying on the invalidity of the hearing.
The factors which, in my view, are material for the resolution of this issue are as follows.
(a) counsel for the defendant clearly raised no objection when the course of taking the unsworn evidence of the infant plaintiff was proposed by the judge on the suggestion of counsel for the plaintiff.
(b) At the conclusion of the taking of such evidence, counsel for the defendant did not make any submission that the evidence was inadmissible or must be ignored, but submitted only questions of the weight of the evidence.
(c) Possibly it is also relevant that in the original grounds of the notice of appeal served after the hearing ground No. 3 dealing with the ‘evidence’ of the child would appear by implication to accept its admissibility while still challenging its weight.
(d) There clearly was no opportunity given to nor sought by counsel for the defendant to consult the defendant and to obtain any specific instructions as to whether to consent to the course of admitting this child to give an account of the accident unsworn.
(e) The plaintiff has not indicated any particular permanent disadvantage or prejudice which he would suffer by reason of the setting aside of this decision were he to obtain a retrial of the action.
Carefully considering these factors, I have come to the conclusion on balance that in the interests of justice the defendant should not be prohibited from relying on the want of validity in the trial that has occurred in this case. This Court can if it decides to set aside the decision already made in the High Court order a retrial.
Both it and the High Court on retrial has a sufficient and ample discretion as to costs to make good any disadvantage the plaintiff may have suffered by reason of the proceedings already had in this case. Any question of loss to the plaintiff arising from delay in the lodgment in court to his credit of the appropriate sum of damages if he succeeds in obtaining a sum for damages can be dealt with under the provisions of s. 22 of the Courts Act 1981.
In these circumstances, having regard to the fundamental nature of the requirement that the evidence of witnesses given viva voce must be after they have either sworn or affirmed, I conclude that in the interests of justice the appeal should be allowed and a retrial of the issue of liability ordered.
Although some account of his injuries and their effect was given by the infant plaintiff at the trial the assessment of his damages was essentially based on the evidence of his mother and on medical evidence. No appeal against these damages was made on behalf of the plaintiff. The defendant in his appeal did not impugn the assessment of damages. I would accordingly agree with the order which I am aware is about to be suggested in the judgment of McCarthy J that there should be a retrial of the action confined to the issues of liability held in the Circuit Court in Sligo.
McCARTHY J:
The plaintiff was born on 9 February 1981; he sustained injury while playing at school on 14 May 1986; he sued the school manager and the action came before Barr J on 6 November 1989. The only witness as to the fact of the accident tendered on his behalf was Jude himself.
On the hearing of this appeal it was accepted that if the account given by him could not be acted on to found the decision, the plaintiff could not succeed.
The general rule in all civil and criminal proceedings is that the oral or written evidence of any witness must be sworn. This rule developed from the principle that only those who were prepared to testify on oath on the Gospel were competent witnesses. Statutory exceptions have been made to this principle but it remains the general law that oral evidence may only be given on oath. At a trial, a child tendered as a witness should be questioned by the trial judge as to understanding the meaning of taking an oath to tell the truth. If the child does not show an acceptable level of understanding, the trial should be adjourned so that the child may be adequately instructed as to the meaning of an oath. If, such instruction having been given, the judge is not satisfied that the child understands the meaning of an oath, then the trial judge should refuse to allow the oath to be administered and must refuse to hear any oral evidence from the witness so tendered.
In the course of trial, many facts are admitted without formal proof — the contents of medical reports, statements to the gardaí, engineers reports, estimates of cost of different kinds and so on. This is not in any sense the giving of evidence; it is a convenient method of avoiding giving evidence by asking the particular tribunal to determine the issues between the parties upon facts that are agreed, although these facts may have to be supplemented by findings of fact made upon sworn evidence. Where there is a contest of fact, it can be resolved in one way, and in one way only, upon a resolution by the tribunal of fact of the issue raised by the witnesses. The resolution may be either of primary or secondary fact but it can only be done upon sworn testimony.
Acquiescence
There are many instances in which a party in a trial will not be permitted to resile from an attitude taken during the trial; he will not be permitted on appeal to go back on a concession made at the trial, whether that concession be expressly or impliedly made. He will not be permitted, ordinarily, on appeal to take a point not taken at the trial. These are procedural principles founded upon considerations of justice, not to allow a party to blow hot and cold. Concessions, express or implied, made mistakenly or otherwise, cannot validly create a new form of trial of action. If it could be permitted in the case of a child, who does not understand the nature of an oath, then it could be done in the case of adequately informed adults; trials could wholly be carried out without an oath being administered to any witness, and thereby, not merely utterly change the nature of a trial, but remove one of the great sanctions that is used to try to secure the truth. If parties wish to resolve their disputes by determining issues arising from contested facts upon unsworn testimony, then they may do so, but in some form of arbitration procedure and not in the courts.
In the course of argument, counsel for the plaintiff contended that to deny an unsworn child the opportunity of giving evidence, that is, an account of what one saw, would interfere with the constitutional guarantee of access to the courts. The matter was scarcely more than propounded and was certainly not argued in any detail. Subject to any further argument being advanced, I see no reason why *704 the Oireachtas might not provide for court hearings on unsworn testimony — in doing so, it would appear to be regulating matters of procedure within Article 36 of the Constitution.
The defendant acquiesced in the procedure adopted; were it not that the matter is so fundamental to the nature of a trial I would not permit the defendant to raise the matter on this appeal. Being satisfied that the admission of the particular evidence rendered the trial wholly unsatisfactory and, in that particular regard, a nullity, I would allow the appeal and set aside the order of the High Court. It would be wholly unjust that the case should then be decided on the remaining evidence and a verdict entered for the defendant. Neither side is blameless for what happened; both must be given the opportunity of putting it right. I would order a new trial.
Damages were assessed at £8,000 in the High Court; this assessment was, in part, based on the account of his injuries given by the plaintiff. No challenge was made by either party to the fairness of the assessment; in the circumstances the new trial should be held in the Circuit Court at Sligo.
Magee v Farrell
[2009] 2 I.L.R.M. 453; [2009] IESC 60
JUDGMENT of Mr. Justice Fennelly delivered the 29th day of October 2008
1. For more than ten years the United Kingdom has been attempting to extradite the Appellant to face trial in England on serious charges of conspiracy to supply drugs and assault. There have been two sets of warrants and several earlier appeals to this Court. By the most recent judgment on 26th October 2006 in the High Court, Peart J refused the Appellant’s application for release on the ground of delay pursuant to section 50(2)(bbb) of the Act of 1965, inserted by section 2(1)(b) of the Extradition (Amendment) Act, 1987 (hereinafter “paragraph (bbb)”). This is the appeal from that judgment.
2. The most recent judgment of this Court relating to paragraph (bbb) was that in Bolger v O’Toole [2008] IESC 38 (17th June 2008). As I explained in my judgment in that case, it is necessary on an application of this kind to consider all the circumstances of the case. Furthermore, this Court must consider that matter independently of the view formed by the High Court judge. It must form its own view as to whether the facts justify a conclusion that it would be unjust, oppressive or invidious to deliver the Appellant.
3. Accordingly, I must recount the history of the attempts of the West Mercia Constabulary to have the Appellant delivered for trial to the jurisdiction of England and Wales pursuant to the Extradition Act, 1965 (the “Act of 1965”). That history must include the first set of warrants and the various legal proceedings concerning them.
Chronology
4. Three warrants for the arrest of the Appellant were issued on 21st October 1998 by Telford Magistrates’ Court in the West Mercia Commission area in England. Warrant “A” alleges that between 1st August 1995 and 7th August 1996 the Appellant conspired together with four named persons to supply a controlled class A drug diamorphine (heroin). Warrant B alleges that between January 1996 and the 1st May 1996 he unlawfully caused grievous bodily harm to one Lee Price with intent to do him grievous bodily harm. Warrant “C” alleges that between the 1st day of March 1996 and the 31st day of March 1996 he committed a similar offence against one Andre Clee. The last two offences are laid as being contrary to Section 18 of the Offences against the Person Act 1861 and are alleged to have been committed at Telford, Shropshire, England.
5. Detective Sergeant Jane Williamson of the West Mercia Constabulary, in her information on oath provided for the original District Court hearing, described the underlying facts alleged against the Appellant as follows. The conspirators targeted vulnerable heroin addicts to sell drugs for them. They used threats and other forms of intimidation and violence to achieve their goals. One of their dealers was Lee Price who ran up large debts as a result of his addiction. He said that he had lost 25 bags of heroin; they were flushed down the toilet. He and Andre Clee were taken to a flat in Telford. Lee Price was viciously assaulted by the Appellant and another conspirator. They twisted his ear and finger with pliers, attempted to drill into his head with a cordless power drill and punched him.
6. Clee was allegedly assaulted on a later occasion: he was tied up by the Appellant and another. They viciously assaulted him with a baseball bat. Other particularly cruel acts are alleged to have been committed upon him.
7. The Appellant says that he has never been questioned about or charged with any of these offences and that he moved to Ireland in 1997. In January 1998, the West Mercia Police learned that the Appellant was living in Ireland. These circumstances were investigated at the time of the Appellant’s first High Court proceeding in 1999 and 2000.
8. As already stated, the first set of warrants was issued by a judicial authority in England and Wales on 21st October 1998. They were duly endorsed for execution in the State. The applicant was arrested at his then place of residence in Dundalk in Co. Louth on 19th January 1999 and taken into custody.
9. The application for his delivery came before the District Court. On 5th May 1999, the necessary orders were made pursuant to section 47(1) of the Act of 1965 by District Judge Mary Devins in the Dublin Metropolitan District Court for the delivery of the Appellant into the custody of a member of the West Mercia Constabulary.
10. The Appellant remained in custody with consent to bail from the date of his arrest and so continued following the making of the District Court order. He was unable to provide an independent surety to satisfy the terms of bail. He spent a period of two years and four and a half months in custody after his arrest in January 1999.
11. On 11th May 1999 the Appellant issued a Special Summons in the High Court seeking his release pursuant to section 50(2)(bb) or (bbb) of the Act of 1965. He has placed before this Court all the pleadings and affidavits from those proceedings, culminating in their dismissal by Finnegan J on 14th November 2000.
12. He said that he was a British citizen of Jamaican descent and of Afro-Caribbean ethnicity. In his grounding affidavit, he alleged multiple acts of assault and harassment upon him by members of the West Mercia Constabulary. He claimed to have been the victim of racial prejudice at their hands, and relied on paragraph (bb). Some of these events were linked to his failure to observe a barring order which had been obtained against his wife (an Englishwoman to whom he was married in 1990). He claimed that he would not get a fair trial if returned to the jurisdiction of England and Wales.
13. Upon his arrest in Dundalk in January 1999, he said that he had not been arrested or charged in England. He said that in January 1997 he had enough money to go to Ireland to “my girlfriend and my two children.”
14. In an affidavit in reply, Detective Sergeant Jane Williamson said that “on 8th September 1996, [the Appellant] was circulated in the United Kingdom as being wanted in accordance with normal police procedures.” He was arrested in the London Metropolitan Area in that month, but was released before his true identity was established. He was released on bail.
15. The Appellant was cross-examined at the hearing before Finnegan J, who rejected his complaint of prejudice by reason of race pursuant to paragraph (bb). He made the following findings of fact:
“In breach of bail conditions the Plaintiff left Telford in late June or early July 1996 and went to London. In January 1997 he came to Ireland where his girlfriend and two children were then living. While his girlfriend lived in County Antrim the Plaintiff lived first in Wexford for some 15 months and thereafter in Dundalk. He regularly visited his girlfriend in County Antrim.”
“With regard to the first mentioned offence the Plaintiff claims that he was unaware of any police activity in relation to the alleged co-conspirators Messrs Thomas, Flanagan and Thomas until he read of their trial in May 1997 and that in January 1997 he was not aware that the trial was pending. On the balance of the probability I do not accept this. The Plaintiff’s girlfriend is a sister of Flanagan and she was in contact with the Plaintiff between January and May 1997 and as a matter of probability brought it to his attention. Again as a matter of probability I find that the accused was aware that the police were anxious to make contact with him in relation to the offences with which he is charged. The most likely reason for his deciding to live first in Wexford and then in Dundalk and to make visits to his girlfriend in Co. Antrim rather than to live in County Antrim was to reduce the possibility of him being arrested in Northern Ireland and being brought to trial. In any event while on a visit to his girlfriend in County Antrim in February 1998 an occasion arose when he had to give his name and address to the Police and he was informed by his girlfriend that the day following the police were looking for him. Thereafter he remained in this jurisdiction as he told me in evidence he thought he could not be arrested in this jurisdiction.”
16. The learned trial judge also rejected the complaint pursuant to paragraph (bbb) He concluded:
“In all the circumstances I am satisfied that the lapse of time from early September 1997 to date was due to the Plaintiff having decided from September 1997 to remain out of the jurisdiction of the United Kingdom, apart from visits to his girlfriend in County Antrim, with a view to avoiding arrest.”
17. The Appellant thus failed in his application for discharge pursuant to either paragraph (bb) or (bbb).
18. The Appellant served notice of appeal to this Court against the judgment and order of Finnegan J. On 31st May 2001, he gave notice of withdrawal of that appeal. He had remained in custody with consent to bail at all times since his arrest in January 1999.
19. No steps were then taken, as they should have been, to have the Appellant delivered pursuant to the District Court order of 5th May 1999 within the period of one month provided pursuant to section 53 of the Act of 1965. The reason was that a charge of assault was pending against him in the District Court.
20. On 6th July 2001, the Appellant was released from custody by order of O’Neill J, following an inquiry pursuant to Article 40.4.2 of the Constitution. It was held that he had been in unlawful custody since 1st June 2001. It is common case that he had been unlawfully detained for a period of five or six days.
21. The District Court charge which had been the basis for failure to deliver the Appellant following the withdrawal of his appeal in May 2001 was disposed of on 22nd January 2002. The Appellant was acquitted.
22. On 9th February 2002, the Appellant was arrested for a second time and taken into custody on foot of the original English warrants issued in 1998. An application was made to the High Court (O’Caoimh J) pursuant to Article 40.4.2 of the Constitution for his release. This was dismissed. On 15th February 2002, the Supreme Court allowed the Appellant’s appeal against the High Court order and ordered the Appellant’s release. In effect, the arrest of the Appellant on the original warrants had been spent on 30th June 2001, when he had not been delivered within the period of one month following the withdrawal of his appeal to this Court.
23. The original warrants now having been spent, new but identical warrants were issued by the Telford Magistrates’ Court on 28th November 2002, a delay of more than nine months. These were received here by registered post on 9th December 2002 and sent to the Attorney General on 11th December 2002 so as to enable him to give a direction pursuant to section 44 of the Act of 1965. No documentation was available to the Attorney General for that purpose until 7th February 2003. The warrants were approved by the Attorney General on 8th July 2003. They were endorsed for execution on 29th August 2003 by an Assistant Commissioner of An Garda Síochána. The Appellant was arrested at his place of residence in Dundalk on 1st September 2003.
24. On 18th September 2003, the Appellant applied to the High Court pursuant to Article 40.4.2 of the Constitution on the ground that, following his release from custody on 15th February 2002, he could no longer be extradited for trial on the offences named in the warrants. On 23rd September 2003, Herbert J dismissed that application.
25. The Appellant appealed to this Court against the order of Herbert J. The appeal was dismissed on 24th October 2003. According to the Appellant’s written submissions, this Court remarked that the case had had an unfortunate history and mentioned that the Appellant might have a case under paragraph (bbb).
26. On 5th December 2003, the Appellant issued a Special Summons pursuant to section 50 of the Act of 1965, relying on lapse of time pursuant to paragraph (bbb). That is the present proceeding.
27. The Attorney General, following the Supreme Court decision of 24th October 2003, applied to the High Court for an order pursuant to section 47 of the Act of 1965 for the delivery of the Appellant to England pursuant to the warrants. That application was heard in February 2004 by Peart J together with the Appellant’s application pursuant to paragraph (bbb). The learned judge held that the Attorney General had not established that any of the offences described in the three warrants corresponded with an offence under the law of the State. He made an order dismissing the application of the Attorney General. Accordingly, he held that it was unnecessary for him to deal with the application pursuant to paragraph (bbb). The Appellant was released.
28. The Appellant had been in custody with consent to bail after his arrest on 1st September 2003 until 24th February 2004, when he was released following the judgment of Peart J.
29. The Attorney General appealed the decision of Peart J to this Court, which allowed the appeal, following an extempore judgment, on 14th March 2006. This Court, by order of 22nd March 2006, remitted to the High Court the application pursuant to section 47 of the Act of 1965.
30. On 11th April 2006, MacMenamin J made an order varying the terms of bail previously set. The Appellant was able to meet the revised terms and was released on bail for the first time on 28th April 2006.
31. The application pursuant to paragraph (bbb) was re-entered before Peart J. The Appellant filed further affidavits in respect of his complaint of delay.
32. In particular, he introduced material concerning his personal life upon which strong reliance was placed at the hearing of the appeal. It is best to quote the Appellant’s evidence on this point in full:
“I …say that it is significant that my personal circumstances have changed markedly since I last applied to the High Court to have my terms of bail varied in November 2003 and more recently since the determination of the extradition proceedings before the High Court. Since the end of 2002 I have been in a relationship with a woman [name given]. On the determination of the substantive extradition proceedings before the High Court in February 2004, I moved back to [an address in Dundalk] and in or about July or August 2004, I moved into [another Dundalk address] with [her]. We have both now moved into [a third Dundalk address] which is [her] father’s house. On 6th December 2005, she gave birth to our daughter….”
“I say that my reason for coming to Ireland in January 1997 was to be in closer proximity to my then girlfriend, [name given], and our two children. [She] and I had commenced our relationship in the United Kingdom and I followed her over here. That relationship was on and off in nature until it finally ended in January 1999, but I say that I have nonetheless maintained a continuous contact as possible with the children of that relationship. [She] has been living in County Antrim in Northern Ireland since my arrival in this jurisdiction. When I first moved to Ireland I lived in Wexford for about fifteen months and I worked while there……”
33. The entire matter came back before the High Court which made the orders pursuant to section 47 of the Act of 1965 on 11th April 2006.
34. Peart J determined the application pursuant to paragraph (bbb) on 26th October 2006. Peart J held that, while there had been an exceptional lapse of time of the order of ten years from the date of the alleged offences, there were no other exceptional circumstances for the purposes of paragraph (bbb). Consequently, he was not permitted to consider the further and decisive question as to whether in all the circumstances it would be unjust, oppressive or invidious to deliver up the Appellant pursuant to the orders made under section 47 of the Act of 1965.
35. The Appellant has filed detailed grounds of appeal and written submissions in support.
The principles
36. Section 50 of the Act of 1965, as amended by section 2(1)(b) of the Extradition (Amendment) Act, 1987 by the insertion of paragraph (bbb) now provides, insofar as relevant:
(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
(2) A direction under this section may be given by the High Court where the Court is of opinion that—
…………………………………………………..
“( bbb ) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47, …”
37. In my judgment in Bolger v O’Toole [2003] 4 IR 222, cited above, I quoted the definitive dictum of Hardiman J in his judgment in Coleman v O’Toole, [2003] 4 IR 222, at page 228 as follows:
“It will be observed that para. (bbb) involves the following concepts:-
1. (a) the lapse of time;
2. (b) and other exceptional circumstances;
3. (c) such that having regard to all the circumstances;
4. (d) it would be unjust, oppressive or invidious to deliver up the plaintiff under s.47.
The first two concepts are conjunctively, not disjunctively, expressed. As a result of this, in my view, the lapse of time must itself be exceptional and there must be other circumstances, themselves exceptional, available to be considered under the section. These circumstances, of lapse of time and otherwise, must be placed in the context of the entire circumstances of the case. Thus considered, they must be such as render it unjust, oppressive or invidious to deliver up the plaintiff, before relief can be granted.”
38. This means that there are three stages to the examination. The first is whether there has been an exceptional lapse of time. That means simply an exceptionally long period. The focus is on the length of the period, in a neutral sense, without any reference to blame or responsibility. There is no contest on that issue in this case.
39. The second question is whether the lapse of time is accompanied by other exceptional circumstances. At this point, I note that Peart J expressed the view that, once he had considered lengthy periods of time to be exceptional under the first heading, to consider them again under the heading of other exceptional circumstances would be “to engage in an exercise in double counting” and that other exceptional circumstances must consist of matters other than that lapse of time. I do not think this is in accordance with the statement of Hardiman J, quoted above, or with the analysis adopted in my own judgment in Bolger v O’Toole. At the second stage, it is permissible to examine individual periods of time with a view to deciding whether, for any reason, they are exceptional. At the first stage, on the other hand, the Court is not concerned with the reason for the lapse of time; it simply looks at its length. In M.B. v Conroy [2001] 2 ILRM 311, Keane C.J., with whom the other members of the Court agreed, held, at page 318, that “one of the factors which may constitute an exceptional circumstance is the dilatoriness of the prosecuting authorities….in applying for the extradition of the plaintiff.”
40. The third stage arises only if the first two requirements have been satisfied, namely the presence of exceptional lapse of time and other exceptional circumstances. At that third stage, the Court will consider all the circumstances of the case before it can reach a conclusion that it would be unjust, oppressive or invidious to deliver the applicant pursuant to the order made under section 47.
41. It is also important to bear in mind the statement of Denham J in Fusco v O’Dea (no. 2) [1998] 3 I.R. 470, at page 508:
“The section requires that in addition to the lapse of time that there be “other exceptional circumstances” such as to enable the exemption to apply. It is for the plaintiff to prove that the exemption applies on the balance of probabilities. The section requires that there be “other exceptional circumstances”,not “other circumstances”. The fact that the exemption is defined so strongly is in keeping with the nature of extradition where once the executive branch of Government has made a policy decision that extradition or rendition agreements exist between two countries and the legislature has passed the requisite legislation, extradition becomes mandatory subject to the law and the Constitution. Thus, it is understandable that exemptions are strongly defined in the legislation. However, they must be strictly construed.
The word “exceptional” indicates that the exemption will be rare, will be the exception, unusual.”
Consideration of the application
42. It is not in dispute that there has been an exceptional lapse of time since the dates of the alleged offences. That period of time was of the order of ten years by the date of the hearing in the High Court.
43. At the hearing of the appeal, Ms Aileen Donnelly, Senior Counsel, submitted, on behalf of the Appellant that the following elements in the history of the case constituted exceptional circumstances;
1. Culpable delay or dilatoriness by both the UK and Irish authorities;
2. The fact that the Appellant had spent a period of three years in detention;
3. That for two, admittedly short periods, the Appellant was unlawfully detained to the extent that his release was ordered, in one case by the High Court and in the second by this Court;
4. That the Appellant had lived openly in Dundalk and formed a family life in the jurisdiction;
5. The combination of these elements, which can in itself be exceptional.
44. Ms Donnelly laid particular emphasis on the period from May 2001 to September 2003. In my view, she is correct to focus on this period. The period from 1996 (the date of the alleged offences) or from when the Appellant came to Ireland in January 1997 was effectively examined by Finnegan J in his judgment of November 2000. The claim of delay pursuant to paragraph (bbb) was determined against the Appellant. Finnegan J considered that the Appellant had fled from the jurisdiction of England and Wales. His presence in Ireland was not known to the West Mercia Constabulary until January 1998. Thereafter, there were some delays, but none were exceptional. The Appellant chose to appeal the decision of Finnegan J, but withdrew his appeal in May 2001. Thus, he can complain of delay in the sense of an exceptional circumstance only from that date.
45. From May 2001, I am satisfied that there were periods of delay which qualify as exceptional circumstances. Firstly, the State failed to deliver the Appellant, within the period of one month permitted by section 53 of the Act of 1965 pursuant to the then existing and enforceable orders, following the withdrawal of his appeal on 31st May 2001. This was based on the legally unacceptable excuse that there was a pending prosecution in the District Court. All of this led to the unlawful detention of the Appellant and his release pursuant to the order of O’Neill J, itself an exceptional circumstance.
46. Thereafter, there was delay and dilatoriness by both the Irish and UK authorities. The former believed (wrongly) that the Appellant could be re-arrested on foot of the 1998 English warrants. This led to a delay until February 2002 when he was arrested, as it happens, unlawfully. This is a period for which this State is responsible. Even after the misconception was removed by the Supreme Court order of 13th February 2002, there was further delay, on the English side, until November 2002 in having new warrants issued. There should have been no delay in issuing the new identical warrants.
47. However, I do not believe that the period between 28th November 2002 (date of issue of new English warrants) and 1st September 2003 (date of arrest of Appellant) was exceptional. I have set out the various steps in that chronology above. All steps in the process were normal and required. No doubt, some could have been taken more quickly, but none of them, in my view, amount to exceptional circumstances.
48. I do not think the detention of the Appellant from his arrest in January 1999 until his release in July 2001, other than the period of unlawful detention of some six days at the end of that period constitutes an exceptional circumstance. Terms of bail were set, but the Appellant was unable to meet the terms, in particular he was unable to provide an independent surety. The length of time does not qualify, for reasons already given. Nonetheless, the fact of detention may be considered, at the third stage, as part of the entire circumstances of the case.
49. The Appellant relies on the decision of this Court in Kwok Min Wan v Conroy [1998] 3 I.R 527 in support of his argument that he has established a family relationship in this jurisdiction and that this fact should be considered an exceptional circumstance. Hamilton C.J., at page 537 of his judgment, dealt with the issue in that case as follows:
“The “exceptional circumstances” which appear to me to arise in this case are, that the plaintiff made no effort to conceal his presence in this country, lived and worked openly within the jurisdiction, was in contact with the gardaí and immigration authorities and in fact applied for and obtained from the British Embassy an extension of his passport, there being no evidence of an attempt to conceal his identity.”
50. The significance of that passage is that, at a time when his extradition was being sought by the British authorities, the British Embassy granted the plaintiff a new passport, while he was resident in this jurisdiction. In addition, the report discloses that the plaintiff had lived openly in Dublin, made no attempt to conceal his whereabouts, had a number of contacts with gardaí from the Aliens Registration Office during the course of which he produced his passport, that he had married and had three children, purchased a house, established a business, which he carried on, and which his wife said that she could not carry on her own and generally has behaved as a responsible person.
51. In my view, the evidence offered by the Appellant in the present case comes nowhere near qualifying for consideration as an exceptional circumstance under this heading. He merely alleges that, having come to Ireland to be closer to one girlfriend, who was in fact living in Northern Ireland, he formed a further relationship with a second woman and had a child by her. The facts are hugely different from those of Kwok Min Wan v Conroy.
52. Thus, the Appellant has established exceptional circumstances in the form of the delays between May 2001 and November 2002, combined with two periods of unlawful detention.
53. In my own judgment in Bolger v O’Toole, I adopted a comprehensive approach to consideration of lapse of time. The time must be assessed as a whole combined with the weight to be attached to individual periods within the period. I said that consideration of “all the circumstances…… must necessarily encompass the entire of the period of lapse of time. The applicant is not entitled to cherry-pick, to say that the authorities are to blame for part of the period and to ignore the rest.”
54. In the present case, the Appellant is entitled to complain about undue delay or dilatoriness for a period of some eighteen months of the entire period of ten years. That must be set against the initial period from 1996 to May 2001, which was composed of an initial period dating from his departure (to use a neutral word) from England, the discovery that he was in Ireland, the issue of the warrants and his subsequent unsuccessful legal challenges up to May 2001. The period following his arrest in September 2003 has been taken up with unsuccessful legal proceedings in the High Court and Supreme Court. Admittedly, he was initially successful in his High Court opposition to the making of the orders under section 47, but he cannot blame the respondent for any delay in that respect.
55. He is entitled to have placed in the balance the two short periods of unlawful detention. He also contended at one stage that he could not be sure that his periods served in detention would be taken into account upon sentence by an English court if that were to arise. That is obviously a matter for the English courts. It is well established that our courts will, in the absence of clear evidence to the contrary, presume that the courts of the jurisdiction seeking extradition will treat the person sought fairly and, in particular, that he will have a fair trial. To the extent that it is right and fair to allow credit for time spent in custody, it must be assumed that the English courts will treat the Appellant appropriately and will make such allowance when imposing any sentence as is just.
56. The final and decisive question is whether it would be “unjust, oppressive or invidious to deliver” the Appellant to the jurisdiction of England and Wales.
57. That is a balancing operation. The established exceptional circumstances must be placed in the balance in favour of the Appellant. He has established that he was unlawfully detained for two periods of some six days each and that there were delays by the authorities of both jurisdictions in the period from May 2001 to November 2002. So far as time and delay are concerned, I do not believe that the Appellant has shown that a balanced analysis of the entire period of ten years shows that there is any unfairness or injustice. Furthermore, the Court must and I do, in addition, take into account the nature and seriousness of the alleged offences. As alleged, they involved drug trafficking of a very serious kind associated with particularly vicious assaults on two persons involved in that trade.
58. The totality of the circumstances of this case do not persuade me that the Appellant will be unjustly treated or oppressed if he is delivered, or that it is in any way invidious that he should be delivered to and tried in the courts of England. I would dismiss the appeal and affirm the order of the High Court, rejecting the application for release of the Appellant pursuant to paragraph (bbb). Consequently, the orders already made by the High Court pursuant to section 47 of the Act of 1965 are effective and enforceable.
Foley v Bowden
[2003] 2 I.R. 607; [2004] 1 I.L.R.M. 22 JUDGMENT delivered the 23rd day of June 2003, by Keane C.J. [Nem Diss]
The facts in this case, the arguments in which have raised some novel and interesting issues, are not to any serious extent in dispute. The plaintiff was shot in the finger and the lung outside his house in Dublin by an unidentified assailant. It is said on his behalf that, in the course of criminal proceedings entitled The People at the Suit of the Director of Public Prosecutions –v- Brian Meehan which were heard by the Special Criminal Court in July 1999, the defendant in the present proceedings admitted under oath that he provided the weapon and instructed an unidentified person to carry out this attack. These proceedings were then instituted by the plaintiff against the defendant claiming damages for personal injuries sustained by him as a result of what he asserted to be the negligence, breach of duty, breach of statutory duty and breach of his constitutional rights by the defendant. On the 22nd July 1999 the plenary summons was served personally on the defendant who was at that time serving a term of imprisonment in Arbour Hill Prison. A statement of claim was subsequently delivered on 1st December 1999. The plaintiff having obtained judgment in the High Court in default of appearance against the defendant on 13th December 1999, the damages were subsequently assessed by Kinlen J who awarded the plaintiff the sum of £120,000 (€152,368.57) on 15th November 2000. The costs of the action were taxed on 23rd February 2001 in the sum of £31,978.85 (€40,604.77). There is, accordingly, a sum of £151,978.85 (€192,973.33) now owing to the plaintiff on foot of the judgment.
It is also not in dispute that the defendant is a participant in what is known as a “witness protection scheme”. Under the scheme, he has been relocated abroad, in return for giving evidence for the prosecution in criminal proceedings arising out of the murder of the journalist, Veronica Guerin. The plaintiff’s legal advisors were of the view that since there was at least a possibility that he was owed sums of money by the State under the scheme, an application for a garnishee order should be made so as to secure the attachment of debts owed by the State to the defendant.
With a view to bringing such an application, the notice of motion which is the subject of the present appeal was served on the Notice Party (hereafter “the Commissioner”). In the notice of motion, the plaintiff sought an order pursuant to Order 42, Rule 36 of the Rules of the Superior Courts directing that the Commissioner – or such other person as the court might consider appropriate – be orally examined in order to ascertain what debts are owed by the State to the defendant.
The notice of motion was grounded on an affidavit by the solicitor for the plaintiff in which he deposed that the plaintiff was now unable to execute the judgment against the defendant. He further deposed that there was at least a probability that the State had entered into a contractual arrangement with the defendant which provided for the continuing payment of sums of money by way of maintenance payments to the defendant and that the agreement included a term providing for the granting of an indemnity by the State to the defendant in respect of his existing liabilities. He further deposed that, although he had written on a number of occasions to the Chief State Solicitor seeking information of this nature, he had received no reply to his letters. No replying affidavit was filed on behalf of the Commissioner. The notice of motion having come on for hearing in the High Court before O’Neill J, he refused the application in a written judgment dated the 4th December 2002.
In his judgment, the learned High Court judge said that he was satisfied that the examination sought could be carried out without tending to reveal details as to the new identity of, or location of, the defendant. He was, however, also satisfied that even disclosure of so confined a nature as that sought by the plaintiff would be sufficient to give rise to what he described as “a real apprehension” on the part of future participants in the programme that their new identity and location would not be protected from disclosure. He was also of the view that the fact that monetary benefits available under the scheme could be made amenable to a process of execution might also deter potential witnesses from participating in the scheme. He accordingly concluded that granting the relief sought would be contrary to the public interest in ensuring that the evidence of potential participants in the witness protection programme would be available for the prosecution of serious crime.
The learned judge added that, in his view, contrary to what had been argued on behalf of the plaintiff, the inclusion of the defendant in the witness protection scheme would not inhibit the plaintiff in the execution of his judgment. He said that if he were to grant the relief sought, the plaintiff would be put in a substantially better position by reason of the defendant being a participant in the scheme and that this would not be justified.
It is agreed that the only statutory reference to the scheme is to be found in S.40 of the Criminal Justice Act 1999, subsection (1) of which provides that
“a person who without lawful authority makes enquiries or takes any other steps whatever, whether within or outside the State, for the purpose of discovering –
(a) the whereabouts of a person whom he/she knows, or reasonably suspects, to be a relocated witness or
(b) any new name or other particulars related to any new identity provided for any such a witness
shall be guilty of an offence.”
Subsection (3) defines the expression “relocated witness” as
“any person who intends to give or has given evidence in proceedings for an offence and who as a consequence has moved residence, under any programme operated by the Garda Siochana for the protection of witnesses, to any place, whether within or outside the State.”
Subsection (4) provides that the expression “lawful authority” means the authority of a court in any proceedings involving the relocated witness or a member of the Garda Siochana not below the rank of Chief Superintendent. Subsection (5) provides that a court is not to give such authority unless it is satisfied
” (a) that to do so would be in the interests of justice, and
(b) that another way of proceeding which would not prejudice the continued participation of the relocated witness in the programme aforesaid, including, without prejudice to the generality of the foregoing, the transmission of any documents required to be served on the witness to the Commissioner … for the purpose of effecting such service, is not available.”
Order 42, Rule 36, of the Rules of the Superior Courts provides that
“When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the court for an order that the debtor liable under such judgment or order, or in a case of a corporation that any officer thereof, or that any other person be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before a judge or an officer of the court as the court shall appoint; and the court may make an order for the attendance and the examination of such debtor, or of any other person, and for the production of any books or documents.”
The finding by the learned High Court judge that the granting of an order under this rule to the plaintiff would not necessarily have the result of disclosing the location or new identity of the defendant in contravention of the provisions of S.40 of the 1999 Act was not challenged on behalf of the Commissioner in the appeal to this court. The plaintiff’s application does, however, give rise to an initial difficulty, having regard to his understandable inability to adduce any evidence in the High Court as to whether there are indeed any sums owing by the State to the defendant under the witness protection scheme.
It is true that Rule 36 provides that the debtor or “any other person” may be orally examined as to “whether any and what debts are owing to the debtor” and that in Patterson –v- Doyle [1878] 4LR Ir 33, the court made such an order, although the judgment creditor did not depose to his belief that any such debts were owing.
That, however, was not a case where, as here, the order was sought against a person other than the judgment debtor.
The fact remains that there is no indication in the rule that there is any obligation on the judgment creditor to satisfy the court that the judgment debtor is in fact owed any sum by the person against whom it is hoped to obtain an order of garnishee. Moreover, in this case, the Commissioner, for understandable reasons, has declined to file any affidavit in response to the grounding affidavit of the plaintiff’s solicitor and one has to proceed on the assumption that there is at least a possibility that there may be sums which could be the subject of an order of garnishee.
The plaintiff, accordingly, in my view, reaches the relatively low threshold which appears to be fixed for the making of an order under the rule. The issue then arises as to whether, for the reasons set out by the learned High Court judge, the order should be refused because it might imperil the effective operation of the witness protection scheme. That scheme has certainly been afforded a form of implied statutory recognition under the provisions to which I have already referred. Moreover, while it can hardly be said that there is a defined and recognised public policy of maintaining in existence schemes of this nature, it was undoubtedly within the competence of the executive and the legislature to adopt such a scheme, provided the constitutional rights of any persons affected were observed. Moreover, it must be assumed in favour of the legislature and the executive that the scheme was adopted in order to assist in the prosecution of serious crime and it is, of course, beyond argument that the achievement of that objective is in the public interest.
If it were the case that requiring the Commissioner, or whoever the appropriate officer may be, to attend before the High Court for the purpose of being orally examined as to any sums which may be owing to the judgment debtor under that scheme and producing any documents relevant thereto of itself would imperil the successful implementation of the scheme in the future, I would agree with the conclusion of the learned High Court judge that the order should not be granted. It is not clear, however, that that would necessarily be the case. It does not follow that, because the relevant documents will be available at the hearing in the High Court, they must, in every instance, be produced for the inspection of the plaintiff or his legal advisors. On the contrary, if the officer objects to the production of any document on the grounds that its disclosure would not be in the public interest, the judge before whom the examination is being held can rule on the validity of that objection and, if necessary, can inspect the document himself or herself without its being furnished for inspection to anyone else. It may be that such an inspection may not be necessary and the very nature of the document may be such that the judge will be able to rule that its production would not be in the public interest and that the public interest in question is not outweighed by any legitimate interest of the plaintiff. Similarly, there should be no essential difficulty in the examination being conducted in a manner which does not disclose either the new identity or the new location of the defendant.
Given the constitutional right of the plaintiff to have access to the courts and to be in a position, so far as the law can enable him so to do, to execute any judgment he has obtained, I am satisfied that he should at least be given the opportunity of having such an oral examination of the relevant officer. Indeed, Mr. George Bermingham SC, on behalf of the Commissioner, fairly conceded that it was the wide ranging nature of the relief apparently being sought which was the substantial ground of objection so far as his client was concerned.
We were referred during the course of the argument to cases which have been decided in the United States courts as to the possible conflict between the operation of a witness protection scheme and the constitutional rights of other persons (Melo – Tone Pending Inc., -v- United States of America [1981] US App. Lexis 15472; Franz –v- USA (229 US App. DC. 396). In that jurisdiction, legislation has provided in detail for the establishment of witness protection schemes and the decisions in question consider the extent to which such schemes when, established by legislation, may legitimately interfere with constitutional rights of other citizens such as rights of access to children and rights of property. The issues, accordingly, with which they were concerned, are more far reaching than those under consideration in the present case and, accordingly, I do not find it necessary to consider them in any detail.
I would allow the appeal and substitute for the order of the High Court an order directing the Commissioner or such person as he may nominate to be orally examined in order to ascertain what debts (if any) are owed by the State to the defendant.
White v Dublin City Council
[2004] 1 I.R. 545
I have read the judgment about to be read by Fennelly J. and I agree with it.
Murray J.
I also agree with Fennelly J.
McGuinness J.
I also agree with Fennelly J.
Fennelly J.
This case concerns a most unfortunate dispute between neighbours regarding a grant of planning permission.
The applicants are the joint owners of number 10 Park Lane, Chapelizod, Dublin 20. The notice party owns and lives in the adjoining house, number 11. Both dwellinghouses are adjacent to Phoenix Park. The applicants originally acquired the land on which the houses are now built about 1986.
There was a substantial amount of open space or garden in the curtilage of number 11. The case concerns the notice party’s attempts to get planning permission for a new house to be built on this ground. There were some earlier planning events, but these are of only passing relevance. The notice party obtained planning permission for an extension about 1993, but did not proceed with it. The applicants obtained planning permission for and built a conservatory to the rear of their house. There was no difficulty or conflict between the parties regarding these matters.
Number 10 adjoins number 11 at a slightly unusual angle. For the purposes of this appeal, the crucial fact is that the rear garden of number 10, the applicants’ house, lies to the east of the site of the notice party’s proposed house.
In June, 1999, the notice party, through his architect, applied for planning permission to build “a two storey, with attic, single family dwelling on land adjacent to an existing house on Park Lane, bordering Phoenix Park”. The required public notices were given. The notice party showed the applicants copies of the drawings that had been lodged. He drew attention to the east elevation to indicate that there would be no windows in that elevation, the one facing their property. He also pointed out that two windows on the proposed south elevation nearest to the applicants boundary would contain obscure glass.
The applicants consulted an architect, who inspected the planning application (reference 1822/99) and advised them that the proposed development would not overlook or overshadow their property. He also advised that the notice party was unlikely to get planning permission. Although the applicants were unhappy with the height of such a development close to their boundary wall, they decided, in view of the architect’s advice and, in particular, the fact that they would not be overlooked, as well as in the interests of good prior neighbourly relations, that they would not object to the application and they did not do so. Nonetheless, permissionwas refused by the first respondents. The decision order refusing permission was made on the 5th August, 1999.
The reasons for refusal related principally to the height and size of the proposed development. One reason related to the fact that its”window orientation” would result in a “high degree of overlooking” of Phoenix Park. Another reason stated that “due to its height, size, design and position in relation to immediately adjoining property [it] would be seriously injurious to the amenities of such property through overshadowing and visual obtrusion”.
In short, the permission was refused for the potential of the proposed dwelling to overlook Phoenix Park, but not the residence or garden owned by the applicants. This was because the plans were so drawn that the house would not, in fact, overlook their property.
The notice party was unhappy with this decision. He felt, rightly or wrongly, that he had been led to believe by two planning officials that his proposals were acceptable from a planning point of view. While he was aware that planning officials could give no binding commitments and the decision-making power of the planning authority could not be fettered by exchanges between developers and officials, there had been no objections to the development. He was not expecting to receive a refusal on such comprehensive grounds. It is unnecessary to decide the merits of this dispute or misunderstanding or even if there was one. Neither of the two officials who dealt with the first application was called as a witness in the High Court. The background is important only for the light it casts on the handling of the notice party’s second application, to which I now turn.
Firstly, however, it should be noted that the notice party, in early September, 1999, lodged an appeal with An Bórd Pleanála against the refusal of the first application.
By a new application, lodged with the first respondent on the 17th September, 1999, the notice party’s architect applied for permission for “the construction of a new two storey with attic single family dwelling of a nett area of 130 sq. metres”. The second application was very substantially similar to the first. The public notice was identical. The application stated, “Due to the location of the existing house and its neighbour, views are only permissible to the north and west from the proposed house, in order to avoid overlooking.” In this respect, therefore, there was no change. The principal variations, compared with the first application were: floor area was reduced by three square metres; the site was moved slightly forward toward Park Lane and away from the applicants’ boundary; a balcony which would have overlooked Phoenix Park was eliminated. The applicants’ architect when he later – after the grant of permission – inspected these plans, considered these alterations to be extremely minor anddesigned only to make the application appear sufficiently different from the first application to constitute a new application.
In October, 1999, the notice party wrote to the first respondent, enclosing a letter from his architect, to express dissatisfaction with what he considered to be the unsatisfactory manner in which the earlier application had been handled. He stated that he had fulfilled the requirements of the planning officer before submission and that he was “shocked when permission was refused on totally different grounds”. He claimed that he had had a similar experience with another officer. Both these officers had left, it was said, without passing on their views. The architect asked for the name of the new officer in charge in order to arrange a meeting to discuss the background to a design which had earlier been considered to be acceptable.
Mr. Kieran Rose, senior executive planner with the first respondent received and considered this correspondence. He said in evidence in the High Court that he regarded the complaints made as being serious in terms of a public authority and its dealings with an applicant for planning permission. He arranged a meeting which took place on the 29th November, 1999. This was attended by the notice party, his architect and a planning expert as well as four planning officials. These were Mr. John Martin, deputy chief planning officer, Mr. David Dunne, chief planner, Mr. Kieran Rose, senior executive planner and Mr. Michael McGinty, executive planner. The notice party and his representatives reiterated their displeasure at the manner in which he claimed to have been treated, as outlined in his letter. Mr. Rose expressed regret at these matters, but disputed, in his evidence, that this expression amounted to an apology.
The discussion then focused on ways in which the application could be modified so as to address the reasons given for refusal of the first application and to make it acceptable in terms of proper planning and development. In particular, the meeting considered reason number 4 of the earlier decision, which concerned the location of the proposed dwelling in the garden area of an existing house and which would result in inadequate curtilage for both houses with “consequent serious injury to the amenities of property in the vicinity”.
The planners were conscious of the position taken by the planning authority in refusing the first application. “The changes in the first application were not,” as Mr. Rose put it “sufficient to warrant a change of decision”. Mr. Dunne proposed that notice might be given to the notice party pursuant to reg. 35 of the Local Government (Planning and Development) Regulations 1994 inviting him to submit revised plans or drawings modifying the proposed development. As will be seen, when I come to consider reg. 35, it operates when the planning authority is disposed to grant permission subject to modifications. It is clear, therefore, that the entire tenor and substance of the meeting was that reg. 35 would be employed so that the notice party would modify the application in such a way as to be acceptable to the first respondent and that permission could be granted without appearing to conflict with the earlier refusal. It was central to this approach that the second application, as it stood, was insufficiently different from the first to justify the first respondent in deciding to grant permission for a development so similar to one which it had recently rejected. The notice party was confident, following the meeting, that he would get his permission, by following the reg. 35 procedure. His confidence was such that he withdrew his appeal to An Bórd Pleanála. There was no discussion as to whether he would be required to publish any new notice of the application.
In the period following the November meeting, the notice party’s architect effectively agreed the modifications with the first respondent. These procedures also made it necessary to extend the time for dealing with the application. Four extensions of time were agreed with the notice party and were made the subject of decisions on the 10th November and the 1st December, 1999 and the 26th January and the 23rd March, 2000.
The modifications actually made were indicated on the 25th January, 2000. Mr. Rose sent an internal memorandum to Mr. McDonnell, saying that discussions had been held with the notice party’s architect and representatives of the planning department and that “it was agreed that the following changes would allow a favourable decision”. He proposed asking the notice party to submit revised plans under reg. 35 and specified the modifications that should be required. The first respondent wrote formally, on the direction of the assistant city manager, to the notice party on the 14th February and in accordance with the terms of Mr. Rose’s memorandum, to the following effect:-
“I recommend [the notice party] to submit revised drawings under reg. 35 of the planning regulations as follows:-
(a) bring forward the buildings to the street frontage;
(b) confine the dormer to the rear;
(c) provide private open space for existing and proposed houses to development plan standards;
(d) reorientate ridge to a north-south line;
(e) no increase in the footprint of the building;
(f) a high quality design and finish on all areas visible to the public.”
Paragraph (d), as Mr. Rose accepted in evidence, would have the effect of altering the orientation of the proposed house through ninety degrees; windows, formerly facing north would now face east. Simply put, the former position where the applicants would not be overlooked would now be changed. Revised drawings were submitted on behalf of the notice party on the 21st February, 2000. A decision to grant planning permission was made on the 20th March, 2000. Planning permission issued on the 4th May, 2000.
The applicants were not aware and were not made aware of the changes that became incorporated into the application, following the implementation of the reg. 35 procedure. From the foregoing summary, it can be seen that the modified plans were not lodged until the 21st February, 2000 and the decision to grant was made on the 20th March, 2000. Because the applicants did not object to a development which would not overlook their property, they did not register any objection with the first respondent. If they had, they would have been informed of the modifications. Even if they had been exceptionally vigilant in inspecting the planning file, they would have found nothing untoward until after the 21st February, 2000.
The notice party informed the second applicant on the 26th May, 2000, that he had obtained planning permission. The latter inspected the planning file on the 29th May, 2000 and learned for the first time that modifications had been made to the drawings and that these formed the basis for the grant of permission. He stated that he was shocked to discover this, as the notice party now had planning permission for a house with six windows on the east elevation and two windows on the north elevation. He subsequently had a conversation with the notice party, who said that the first respondent had forced him to change the plans.
Regulation 35 makes no provision for re-advertising applications, following the submission of modified plans or drawings, pursuant to a requirement of the planning authority. The planning authority has, however, power under reg. 17(3) to require new public notices.
Mr. Rose, in his internal written communication of the 25th January, 2000, to Mr. McDonnell, made no reference to whether a new public notice should be required. He simply did not mention the matter. In his evidence, in the High Court, he said that it was a matter “for the judgment of the planning authority” whether a new public notice was necessary. He did not “consider it necessary to re-advertise the proposed development”. He explained his reasons for this conclusion very fully. It is sufficient, for the purposes of this appeal, to say that, on the central issue of “overlooking,” he did not consider the change to be significant. He laid stress on the village location of the development. There would be no greater degree of overlooking than might be expected in a suburban site. He concluded that the particular level of overlooking was acceptable.
The proceedings to date
The applicants served a notice of motion seeking judicial review of the decision of the planning authority on the 13th September, 2000. This was, of course, outside the two-month time limit for challenging planning decisions laid down in s. 82(3B)(a) of the Local Government (Planning and Development) Act 1963, as inserted by s.19 of the Local Government (Planning and Development) Act 1992. Accordingly, the applicants included in their judicial review application an application for a declaration that this provision is invalid, having regard to the provisions of the Constitution.
On the assumption that the two month time limit was unconstitutional, and on the further assumption that the court would have power to extend any applicable time limit, the applicants considered that they would need to get the time extended and they made an application for amendment of the judicial review grounds so as to include an application for an extension of time pursuant to O. 84, r. 21 of the Rules of the Superior Courts 1986. However, they commenced their application within six months from the making of the impugned decision.
The High Court made orders declaring that the applicants had locus standi to challenge the validity of the section and granting leave to apply for judicial review.
The full judicial review proceedings were heard by Ó Caoimh J. in the High Court over five days in January and February, 2002. The hearing consisted of consideration of a large number of affidavits and the cross-examination of a number of witnesses.
Ó Caoimh J. dealt, firstly, with the non-constitutional issue. He thought that the decision-making process was “very far from transparent and appear[ed] to have been conducted in a manner to ensure that the applicants would not be aware of the nature of the proposed grant of planning permission prior to its grant”. He thought that the use of the reg. 35 procedure had resulted in the grant of a permission very far removed from the initial application made in September, 1999. He considered that the exercise of the discretion conferred by reg. 17(3) of the regulations should be viewed in the overall context of the Planning Acts and the need for transparency in the decision making process. He did not see how “a planning authority could not consider that re-notification or re-advertising was necessitated in view of the very fundamental change effected between the planning permission sought and the ultimate decision to grant planning permission with the ‘modifications'”.
Ó Caoimh J., in his judgment of the 25th May, 2001, outlines the facts surrounding the period between the time the applicants learned of the
planning decision and the issue of proceedings in September, but does not appear specifically to have addressed the issue of extension of time. Where the section contained no provision for an extension of time, he considered it idle to speculate on what the outcome would have been if it had. It seems that the application for judicial review was commenced within the normal period of six months for an application for certiorari. At any rate, no point on this issue has been raised on the hearing of the appeal. Ó Caoimh J. declared the section to be unconstitutional and granted an order ofcertiorari in relation to the decision to grant planning permission. He also certified, pursuant to s. 82 (3B)(b) of the same Act, that his decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court. The certified point is:-
“In the light of the discretion vested in a local planning authority such as [the first respondent] to decide whether any proposed modifications in an application for planning permission warrant fresh notices and re-advertising, is it open to a court to conclude in a given case that the decision is unreasonable or irrational notwithstanding any purported explanation for the decision taken?”
The appeal
The central point made on behalf of the applicants may be made quite simply. The development envisaged in the original application would have contained no windows overlooking their property. The first respondent required that the application be modified so as to orientate windows in an easterly direction which would, indeed, overlook their property, i.e., their rear garden. They were aware of the application as lodged. They had been given the plans of the first application and had caused it to be inspected by an expert planner. They had – correctly – been informed that the second application was closely similar. Therefore, they had not objected. They were unaware of the modifications which had the effect of re-orientating the windows so as to overlook their property, as they had never been advertised.
The first respondent and the notice party respond that it was a matter for the former to decide whether a new notice should be required. They were not obliged to do so. Regulation 17(3) is discretionary. Mr. Rose duly and properly considered this issue from the point of view of the proper planning and development of the area. The court should not overrule his decision merely because it disagrees with him. He gave ample reasons for his decision, which cannot be regarded as irrational.
Priority between constitutional and other issues
The applicants’ claim is, of course,prima facie statute-barred. It is not contested that, in order to succeed, they have to show that s. 82(3B)(a) of the Act of 1963, as amended, is unconstitutional. The first respondent suggests, in its written submissions, that it may be appropriate to consider the constitutional issue in advance of the other issues. If the section is not unconstitutional, there is no need to reach a conclusion on the planning issue. That approach is not permissible.
It is well-established in the case law of this court that a challenge to the constitutionality of a statute will not normally be addressed until the person mounting the challenge shows that he is affected by the provision. Finlay C.J. stated that it is clear from the”jurisprudence that the Courts should not engage in the question of the possible invalidity of an Act of the Oireachtas unless it is necessary for its decision to do so” ( McDaid v. Judge Sheehy [1991] 1 I.R. 1 at p. 17.) Where there are points which do not entail such a question, it follows that they must be dealt with first. If they are decided against the party raising the constitutional question, the latter will not normally be reached. Alternatively, as in Roche v. Minister for Industry and Commerce [1978] I.R. 149, a party may succeed on a non-constitutional ground. In that case, the court declared invalid, for non-compliance with a statutory provision, an order made by the Minister under the Minerals Development Act 1940. The plaintiff, therefore, succeeded in his objective and this court was unanimously of the view that it was unnecessary to deal with the validity of the section.
A possible exception is recognised in two judgments. O’Higgins C.J. in M. v. An Bórd Uchtála [1977] I.R. 287, at p. 293, thought that “there may be circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger [i.e. constitutional] inquiry necessary.” Finlay C.J. in Murphy v Roche [1987] I.R. 106 expressed the view at p. 110 that the principle must be subject in any individual case to the overriding consideration of doing justice between the parties.
When considering the consequence of that principle for the present case, it is most material to consider the case of Brady v. Donegal Co. Council [1989] I.L.R.M. 282. In that case, the planning issue was whether the newspaper, the Derry Journal, in which a notice of a planning application for County Donegal was published, circulated in the area of the proposed development. Costello J., in the High Court, without deciding that preliminary issue of fact, entered on a determination of the constitutionality of the statutory provision at issue in the present case. His attention was not drawn to the case law referred to above (insofar as it had been decided at that time). He decided that the section was unconstitutional. In this court, Finlay C.J., speaking for a unanimous court, held that, without a determination of whether the newspaper circulated in the area of the proposed development, the court should not consider the constitutional question. The plaintiffs had no locus standi unless that was decided in a particular way. Therefore, the entire matter was remitted to the High Court.
In my view, the logic of those decisions is that it would not suffice for the applicants to show that they wish to impugn the validity of the planning permission. It is, no doubt, possible to say that it would be simpler and more convenient for the court to address the constitutional issue first. However, there is no overriding consideration, in the interests of justice, for departing from the normal rule. I am satisfied that it must be shown that their claim is well-founded, in short that it would succeed. If, on the other hand they fail on the planning issue, it will be unnecessary to consider the constitutional issue.
Conclusion on the planning issue
Ó Caoimh J. effectively considered that the decision of the planning authority not to demand that the notice party re-advertise his application, having regard to the modifications required through the reg. 35 procedure, was so unreasonable as to be irrational. Consequently, the applicants were deprived of any reasonable opportunity to object. This invalidated the decision to grant permission.
Regulation 35 provides:-
“Where a planning authority, having considered a planning application, are disposed to grant a permission or an approval subject to any modification of the development to which the application relates, they may invite the applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of, the said development and, in case such plans, drawings or particulars are submitted, may decide to grant a permission or an approval for the relevant development as modified by all or any such plans, drawings or particulars.”
As already stated, this regulation, in itself, does not require the publication of any new notice. The relevant provision is to be found in reg. 17(3), and is as follows:-
“Where -”
(a) plans, drawings or other particulars are submitted to a planning authority by an applicant in response to an invitation under article 35 the planning authority may, where they consider it necessary so to do, require the applicant to give such further notice in such manner and in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement.”
The key elements of fact should here be recalled. The notice party had made and had advertised two successive applications for planning permission for the construction of a dwellinghouse in the garden curtilage of his house at number 11, Park Avenue. The applicants were aware of both the first and the second application. The notice party had shown them the plans of the first and had demonstrated that their garden at number 10 would not be overlooked. The first application had been refused, inter alia, because the first respondent considered that the proposed development would be visually obtrusive and, for that reason, seriously injurious to the amenity of adjoining property. The first respondent was on notice from the first application and the appeal lodged on behalf of the notice party that the development as notified did not overlook the applicants’ property and that the plans had been shown to them in order to demonstrate this fact. In a letter accompanying the second application, the notice party’s architect repeated that “due to the location of the existing house and its neighbour, views are only permissible to the north and west from the proposed house in order to avoid overlooking”.
The first respondent and, in particular, Mr. Rose considered that the notice party had legitimate grounds for complaint about the manner in which the first application had been handled. For that reason, a special meeting was, quite reasonably, arranged for him and his advisers with a number of senior planning officials. The discussion turned to addressing the reasons for refusal in such a manner as to devise modifications which would enable planning permission to be granted. In the view of the planners, the second application was not sufficiently different from the first to warrant a departure from the position adopted in the refusal of that first application.
The procedure under reg. 35 was identified as the means by which these twin objectives would be achieved. The application would be sufficiently altered to justify a departure from the refusal and the new application could be granted.
The crucial element in the required modifications which were identified was that orientation of the proposed house would be turned ninety degrees. The result would be that, instead of being merely visually obtrusive to the occupants of number 10, the proposed house would overlook the garden of number 10.In this situation, Mr. Rose seems to have made the crucial decision that the amount of overlooking would not be significant and that, consequently, the first respondent should not exercise its statutory power to require the notice party to publish any new notice of the application. The consequence was that the applicants had no reasonable means of knowing that the plans had been altered in this way. To compound this aspect of the matter, because they had been prepared to accept the “visual obtrusion” of the first version with no overlooking, they had not lodged any objection with the first respondent. If they had, they would have been informed of the modifications.
It now has to be decided whether this decision can properly be described as so irrational as to warrant the quashing of the permission. The test of irrationality is propounded authoritatively in the judgment of Henchy J, with which the majority of the court agreed, in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 at p. 658:-
“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”
In O’Keeffe v. An Bórd Pleanála [1993] 1 I.R. 39, Finlay C.J. applied these principles with particular force to planning decisions. He said, at p. 71:-
“These considerations, described by counsel on behalf of the appellants as the height of the fence against judicial intervention by way of review on the grounds of irrationality of decision, are of particular importance in relation to questions of the decisions of planning authorities.
Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.”
It is argued on behalf of the first respondent and the notice party that the evidence of Mr. Rose showed that he had considered all relevant matters. He acted as an expert planner. He had knowledge, experience and expertise in all relevant aspects of the matter. According to Mr. Rose, “there is always a degree of overlooking of rear gardens from adjoining houses.” He said that it was his judgment as a planner and that of the first respondent that “the particular level of overlooking was acceptable”. Although he acknowledged in evidence that the applicants would not know of the modified drawings, he considered that new public notices were not necessary.
I would certainly be prepared to accept that the court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr. Rose were a substantive decision of the first respondent or of An Bórd Pleanála to grant planning permission in spite of the degree of overlooking of the applicants’ property, in circumstances where the applicants had been on notice and whether or not they had objected, it would have been extremely difficult if not impossible to quarrel with it, still less judicially review it.
I believe, however, that Mr. Rose’s reasoning was flawed. He was, in reality, acting as if he were deciding whether permission should be granted. In considering whether the modified plans should be re-notified, he should rather have asked himself, in the circumstances of the application before the first respondent, whether some members of the public might reasonably wish to object to the plans as modified. Much was made in argument of the fact that the statutory notices are for the benefit of the public and are not directed to any individuals. That is an unduly narrow interpretation. The members of the public likely to be most closely affected by a planning application are the nearest neighbours, a fact implicit in the reasons given for the original refusal. Mr. Rose, by assessing the degree of overlooking without allowing for the possibility of objection, was effectively deciding, without hearing possible objectors, that there was no reasonable basis for objection.
Mr. Rose should have considered the history of the two applications. The first and the unmodified version of the second application were, as is common ground, very similar. In particular, they did not involve overlooking of number 10 and there was very specific reference to the lack of overlooking. He should have realised that the first respondent was requiring modifications precisely to differentiate the plans sufficiently from the notified application. He should have appreciated that the essential modification being required by the first respondent would necessarily and automatically substitute overlooking for visual obtrusion and that the notice party had specifically informed the first respondent that the neighbours had been shown the plans on the basis that there would be no overlooking.I do not say that the first respondent’s decision was irrational in the broad sense. Mr. Rose’s planning expertise is undoubted. I consider rather that Mr. Rose, on behalf of the first respondent, excluded from his consideration the likelihood that the applicants would want to object and that, if they did, the first respondent would have had to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and irrational. The first respondent created a dilemma for itself by requiring modifications in order to differentiate the second application sufficiently to justify a departure from the decision to refuse, but which would be, nonetheless, not sufficiently different to warrant a new public notice. This is a very fine line to tread. This factor is special to this case. It would not arise in every case of reg. 35 modifications. Regulation 35 accords a substantial discretion to a planning authority and clearly envisages a wide range of cases in which modifications to a planning application should not require new public notices, but the radical nature of the changes to the application in this case make it exceptional. In this case, there should have been new notices, which should have included mention of modified plans. For this reason, I would answer the point certified by Ó Caoimh J. in the sense that it was open to him, in the circumstances of this case to conclude that the decision of the first respondent, having required modifications to the application as lodged, not to require that it be re-advertised by new public notices, was unreasonable and irrational.
For these reasons, I would uphold the decision of the High Court Judge on the planning issue. The applicants are entitled to an order ofcertiorari quashing the decision to grant planning permission, subject to the effect of the two-month time limit, which is considered in the judgment of the court.
McCracken J.
I agree.
In accordance with the provisions of Article 34.4.5 of the Constitution, the judgment of the court on the constitutionality of s. 82(3B)(a)(i) of the Local Government (Planning and Development) Act 1963 was delivered by a single member.Denham J.
The applicants, in the statement grounding their application for judicial review, claimed a declaration that s. 82(3B)(a)(i) of the Local Government (Planning and Development) Act 1963, as inserted by s. 19(3) of the Local Government (Planning and Development) Act 1992, is invalid having regard to the provisions of Articles 40.3 and 43 of the Constitution. Their claim for judicial review of the decision of the first respondent was commenced outside the two month time limit allowed by that section.
Section 19(3) of the Act of 1992 inserted the following provision into s. 82 of the Act of 1963:-
“(3A) A person shall not question the validity of –
(a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act, or
(b) a decision of the Board on any appeal or on any reference, otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as ‘the Order’).
(3B)(a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this section shall –
(i) be made within the period of two months commencing on the date on which the decision is given, and
(ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to –
(I) if the application relates to a decision referred to in subsection (3A) (a) of this section, the planning authority concerned and, where the applicant for leave is not the applicant for the permission or approval under Part IV of this Act, the applicant for such permission or approval,
(II) if the application relates to a decision referred to in subsection (3A) (b) of this section, the Board and each party or each other party, as the case may be, to the appeal or reference,
(III) any other person specified for that purpose by order of the High Court,
and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.”
In the present case, the court is concerned with the absolute two month time limit imposed by the section, especially with the fact that there is no power to extend the time.
The applicants argued that, by enacting this provision, which contains an absolute and unqualified limitation period and without any provision for an extension of time in circumstances where an aggrieved person did not know and could not reasonably have known within the period that a decision had been made affecting his or her interests, the State has failed to respect and vindicate their personal and property rights.
The High Court Judge identified the constitutional issue for determination as being:-
“Whether the decision of the Oireachtas to legislate in the manner in question without the saving clause contended for on the part of the applicants was irrational such as to require this Court to strike down the impugned provision, where the failure of the applicants to bring the proceedings in question was one where the essential blame lies with the planning authority.”
Having considered the matter, he reached the following conclusion, at p. 45 of his judgment:-
“The applicants’ ignorance of their rights during the short limitation period was caused by the first respondent’s own wrongdoing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it. I am satisfied in these circumstances that there must be very compelling reasons indeed to justify such a rigorous limitation on the exercise of a constitutionally protected right. The constitutionally protected right of the applicants is the right to litigate. Against that must be balanced the constitutional right of the notice party in his property to be protected against unjust or burdensome claims. The interest of the public is twofold, namely that constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims. There is also an interest of the public in proper planning and development. The issue in this case is whether the balance contained in the impugned provision is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights. This must be determined from an objective stance.
I am satisfied that the limitation period at issue in this case, in the absence of any saver, is so restrictive as to render access to the courts impossible for persons in the position of the applicants and that as such it must be considered to be unreasonable and, therefore, unconstitutional. I am satisfied that while the imposition of a limitation period such as that at issue in these proceedings must be such as inevitably to cause some hardship, ‘the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.'” (This is a citation from the judgment of the court in Tuohy v. Courtney [1994] 3 I.R. 1, discussed later.)
The High Court Judge accepted the applicants’ contention and declared the provision to be repugnant to the Constitution. The first, second and third respondent have appealed against that decision.
Counsel for the second and third respondents relied, firstly, on the cardinal and oft-repeated principle that an Act of the Oireachtas is presumed to be constitutional. This principle applies with particular force to legislation regulating social and economic matters. He cited especially the judgment of the court in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.
Counsel considered that the High Court Judge had propounded for himself the correct test in the passage cited above, but that he had not applied it correctly to the particular legislation. Limitation periods inevitably entail curtailment of the right to litigate. This is justified by the need to protect defendants from stale claims. The history and function of limitation periods had been fully explained in the judgment of this court, per Finlay C.J. in Tuohy v. Courtney [1994] 3 I.R. 1. In particular, the recognition, in that case, that the promotion of certainty and finality of claims so as to permit individuals to arrange their affairs, “whether on a domestic, commercial or professional level”, as a legitimate purpose of legislation clearly justifies the limitation provided by s. 82(3B)(a)(i). The Oireachtas engages in a balancing exercise. It balances the respective constitutional rights to litigate and to be protected from stale claims. That is a legislative function. It can be overruled only in the event of what the High Court Judge, quoting Finlay C.J. called “hardship … so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed”.
The second and third respondents defended the absence of a provision for extension of time, in reliance on Hegarty v. O’Loughran [1990] 1 I.R. 148. Such legislation may represent a just and reasonable policy decision, which it is for the Oireachtas to take. The decision of the court in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 showed that an extremely short limitation period – in that case fourteen days – could be justified by objective reasons.
Counsel for the second and third respondents next outlined the legislative policy considerations. These include the need for certainty about future development, the right of developers to know at an early stage that there is a challenge and to avoid unnecessary costs in planning appeals.
These were recognised by Costello J. in Cavern Systems Dublin Ltd. v. Clontarf Residents Association [1984] I.L.R.M. 24. Despite the declaration by Costello J. in Brady v. Donegal Co. Council [1989] I.L.R.M. 282 that s. 82(3B)(a)(i) was unconstitutional (a decision set aside by this court for other reasons), the Oireachtas made the deliberate choice to re-enact the absolute time-limit in 1992. This, in itself, belies the contention that this legislative decision is irrational. The rationale was explained by Finlay C.J. in K.S.K. Enterprises Ltd. v. An Bórd Pleanála [1994] 2 I.R. 128 at p. 135: a person who has obtained planning permission should “at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision”.
The second and third respondents acknowledge that s. 50 of the Planning and Development Act 2000 permits an extension of the eight week time limit there enacted where “there is good and sufficient reason for doing so.” This different policy choice does not, however, mean that the enactment of s. 82(3B)(a)(i) was irrational. The practice of the High Court has, it is noted, been to be very strict about any such extensions.
Counsel for the applicants supports the decision of the High Court. He says that the right of access to the courts is guaranteed by the Constitution. Section 82(3B)(a)(i) has operated to defeat the applicants in the exercise of this right. They were deprived of the opportunity to challenge a planning decision to grant permission for a materially different development from that which had been advertised. The section imposes an unreasonable restriction by not permitting any judicial extension of the time limit. The public policy objectives pursued by the legislation, namely of confining the opportunity of objecting to planning decisions and of protecting the interests of those who have obtained planning permission, could have been attained by a short limitation period combined with a provision for extension. The legislative discretion should not be exercised so as to undermine a right guaranteed by the Constitution.
The applicants relied, in particular, on the reasoning of Costello J. in Brady v. Donegal Co. Council [1989] I.L.R.M. 282. The decision in Tuohy v. Courtney [1994] 3 I.R. 1 is distinguishable. It was concerned with a limitation period laid down by the Statute of Limitations 1957 and with the balancing of the rights of plaintiffs and defendants in actions of contract and tort. It did not concern the right of access to the courts. In private litigation, limitation periods are a matter of defence: they must be pleaded. The present case concerns the lawfulness of a decision of a public authority and, hence, the right to challenge, in the public interest, unlawful executive or administrative action. The planning code is concerned with the common good. The statutory scheme recognises that members of the public should participate.
The effect of the section is to exclude a person who did not know and could not have known that he had a cause of action during the two month period from challenging a decision which affected him. The common good requires that there should not be an absolute time limit in respect of planning decisions.
Counsel for the applicants submitted that the test is that propounded by Costello J. in Brady v. Donegal Co. Council [1989] I.L.R.M. 282, where he had said at p. 288 that he “should approach the issue … generally, (a) by considering whether the plaintiffs have shown (and the onus is on them) that the two month limitation period is unreasonable having regard to the competing interest which the Oireachtas was required to reconcile, and in particular, (b) whether the absence of a saver clause in the legislation which would enable the court to lift the two month bar in favour of a plaintiff whose ignorance of a cause of action within the two month period was caused or contributed to by the defendant is unreasonable thus rendering the section constitutionally invalid”. Costello J. also considered the earlier Supreme Court decision in Cahill v. Sutton [1980] I.R. 269 and particularly some remarks of Henchy J. regarding s. 11(2)(b) of the Act of 1957. Henchy J. had observed the absence from the section of a saver for cases where a plaintiff did not know and could not have known of the existence of his cause of action within the three year period there provided. He remarked, at p. 288, in what was clearly an obiter dictum,that “the justice and fairness of attaching … a saver [such as had been enacted in the United Kingdom] are so obvious that the enactment by our Parliament of a similar provision would merit urgent consideration”.
In Brady v. Donegal Co. Council [1989] I.L.R.M. 282, Costello J. did not consider those remarks as indicating a concluded view that the section of the Act of 1957 was unconstitutional, but he found them”of considerable relevance to this case”. He went on the state, at p. 288:-
“A fortiori, a limitation period which contains no saver of plaintiffs whose ignorance of their cause of action is attributable to the defendants’ wrong-doing would appear to be unjust and, very likely, unconstitutional.”
The applicants also relied on the statement in the judgment of the court in O’Brien v. Manufacturing Engineering Co. Ltd. [1973] I.R. 334 at p. 366:-
“It is, of course, conceivable that occasions may arise when some particular prospective litigant or injured party may have no knowledge whatever of any statutory period of limitation, whether under this Act or any other Act, and may thereby be unable to maintain his action; but the reasonableness or otherwise of a statutory provision which depends for its validity upon its reasonableness is not to be determined by the possibility that such a hypothetical case may arise but is to be examined in the general circumstances of the ordinary life of this country prevailing at the time the enactment comes into force.”
The applicants also referred to the dictum in O’Brien v. Keogh [1972] I.R. 144, at p. 157 to the effect that the duty of a court in testing the constitutionality of a statutory provision was to do it “in as wide a manner as if the provision had been the subject of a reference under Article 26 of the Constitution”.
Consideration of the constitutionality of s. 82(3B)(a)(i)
It is not contested that the right of the applicants, which is affected by the impugned provision, is correctly described as a right to litigate and, as such, a personal constitutional right. It, therefore, attracts the guarantee provided by Article 40.3.1 of the Constitution that the State will, “by its laws … defend and vindicate [it]”. It is not necessary to adjudicate on the applicants’ claim that it is also a property right, which benefits from the protection of Article 43 of the Constitution. Finlay C.J., delivering the judgment of the court in Tuohy v. Courtney [1994] 3 I.R. 1, noted at p. 46 that the plaintiff, in that case, had been unable to”point to any material difference in the constitutional protection which would apply to this right to litigate if it were on the one hand considered to be exclusively an unenumerated personal right or on the other hand if it were considered to be exclusively a constitutional property right or indeed if it were considered to be both”. The court concluded that there was no such difference and found it unnecessary to reconcile or adjudicate on some inconsistencies in the earlier case law. In this case also, it is unnecessary to go further than to state that the right claimed by the applicants is a constitutionally guaranteed personal right.
The essential complaint which grounds the challenge to the constitutionality of the section is based on its absolute character. The applicants claim that the absence of a power to extend the two month time limit renders the section so unjust as to be unconstitutional. It was not argued, nor could it be, that the two month period is, in itself, so short as to invalidate the limitation.
In The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360, this court held a two-week period not to be unconstitutional. In the legislation there in question, there was a power to extend. It must also be remembered that the period here at issue concerns the time for bringing judicial review proceedings. The rules of court, recognising the need for certainty in relation to the status of administrative decisions, have always typically provided for limitation periods of six months or less, though accompanied by a power to extend time.
Griffin J., in his judgment in Hegarty v. O’Loughran [1990] 1 I.R. 148, at p. 157, referred to the history in all common law countries, for several centuries, of periods of limitation affecting the commencement of civil proceedings. Ultimately, disparate statutory limitations came to be codified in comprehensive schemes of limitation. Such is the Statute of Limitations 1957.
The laying down of periods of limitation is a legislative, not a judicial function. As has frequently been said, the making of such laws requires the legislature to balance conflicting considerations. An aggrieved person, a plaintiff, who has a legitimate civil claim against another, enjoys a legal right – a right also protected by the Constitution – to pursue his claim in the courts. If a plaintiff neglects or unduly delays in the prosecution of his claim, it may become unfair to expect the potential defendant to meet it after a very long period. Among the relevant considerations are fading memories, unavailability of witnesses, through death or for other reasons, the destruction of evidence or changes in circumstances rendering it unjust that a plaintiff should pursue a stale claim.
The task of weighing all relevant considerations and striking a balance in the form of a limitation period is quintessentially a matter for the judgment of the legislator. The correct approach for the courts to take has been authoritatively stated in Tuohy v. Courtney [1994] 3 I.R. 1. Finlay C.J., delivering the judgment of the court at p. 47 stated:-
“It has been agreed by counsel, and in the opinion of the Court, quite correctly agreed, that the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.
The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”
That passage in effect restates, in the context of laws providing limitation periods, the presumption of constitutionality enjoyed by all Acts of the Oireachtas. It also sets a high standard to be met by any person impugning the constitutionality of a period of limitation.
In Tuohy v. Courtney [1994] 3 I.R. 1, the court was concerned with the six year period for the commencement of actions – in that case for professional negligence against a solicitor – for financial loss. The plaintiff’s complaint resembles in one respect that made in the present case. He was unaware, until a number of years after the purchase, that he had bought a house with a seriously defective title. The court accepted, at p. 47, that it could “not be disputed that a person whose right to seek a legal remedy for wrong is barred by a statutory time limit before he, without fault or neglect on his part, becomes aware of the existence of that right has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance”. Nonetheless, the court proceeded, at p. 48, to identify three principal objectives of a limitation period:-
“The primary purpose would appear to be, firstly, to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.
Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.
Thirdly, they are designed to promote as far as possible and proper a certainty of finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities.”
The court then referred once more to the balancing of conflicting considerations:-
“The counter-balance to these objectives is the necessity as far as is practicable, or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limit statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is to ascertain whether the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.”
The last sentence was cited by Ó Caoimh J. in the present case. The court concluded that the absolute character of the six year limitation period laid down by s. 11(2)(a) of the Statute of Limitations 1957 did not render it unconstitutional. It observed that the “period of six years is, objectively viewed, a substantial period”. It noted the existing provisions for extension in cases of disability, part-payment, fraud and mistake, which it considered to “constitute a significant inroad on the certainty and finality provided by the Act”.It rejected one of the plaintiff’s arguments to the effect that a defendant would always be protected by the existence of the power in the courts to dismiss a claim for gross and unreasonable delay within the limitation period. It did so by reason of the extensive time-scale of such proceedings and the consequent “anxiety and uncertainty for the defendant”. Hence, it concluded, at p. 50, that the legislative decision not to include provision for an extension relating to discoverability of the cause of action was “supported by just and reasonable policy decisions”.
This court has more recently had to consider the constitutionality of a limitation period in its decision in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360. The Bill referred to the court by the President pursuant to Article 26 of the Constitution provided, as does the legislation under consideration on this appeal, that judicial review was the only permitted procedure for the challenge of relevant decisions. It limited to fourteen days, dating from notification of the relevant order, notifications or decisions made in respect of non-nationals. However, the fourteen day limit was not absolute. Section 5(2)(a) of the Bill provided that the application must “be made within fourteen days commencing on the date on which the person was notified of the decision … unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made”.
From the judgment in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360, it is clear that the remedy of judicial review is entitled to specific protection by reason of its function of permitting the courts to control the legality of State action. The referred bill concerned state decisions affecting non-nationals. The court described the right of access to the courts of non-nationals in such a way as to cast light on the function of the courts under the rule of law, namely that of enabling all persons to invoke the jurisdiction to review the legality of administrative decisions. At p. 385 of the report, Keane C.J., delivering the judgment of the court, said:-
“It would be contrary to the very notion of a state founded on the rule of law, as this State is, and one in which, pursuant to Article 34 justice is administered in courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right of access to the courts to enforce their legal rights. In Murphy v. Greene [1990] 2 I.R. 566 at p. 578 Griffin J. observed, ‘it is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the courts. Stated in its broadest terms, this is a right to initiate litigation in the courts …’
It may be that in certain circumstances a right of access to the courts of non-nationals may be subject to conditions or limitations which would not apply to citizens. However, where the State, or State authorities, make decisions which are legally binding on, and addressed directly to, a particular individual, within the jurisdiction, whether a citizen or non-national, such decisions must be taken in accordance with the law and the Constitution. It follows that the individual legally bound by such a decision must have access to the courts to challenge its validity. Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective.”
The court, in dealing with the two week judicial review time limit also recognized the strong public interest in certainty of decisions of administrative bodies. Keane C.J. stated, at p. 392:-
“There is a well established public policy objective that administrative decisions, particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible.”
In the particular circumstances of decisions affecting asylum and immigration, it concluded, at p. 393, that there were “objective reasons” justifying “a stringent limitation of the period within which judicial review of such decisions may be sought, provided constitutional rights are respected”.
It emphasised, nonetheless, that, while it “is a matter of policy and discretion for the legislature to choose the appropriate limitation period,” nonetheless, “in exercising that discretion the legislature must not undermine or compromise a substantive right guaranteed by the Constitution such as the right of access to the courts”. In the special case of immigrants, the court recognized the likelihood of the existence of “cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own … are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days”. The court then said: “This is a situation with which the courts deal on a routine basis for other limitation periods.” It concluded, at p. 393:-“Moreover, the discretion of the court to extend the time to apply for leave where the applicant shows ‘good and sufficient reason’ for so doing is wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period. For example counsel assigned to the court have argued that the complexity of the issues, or the deficiencies and inefficiencies in the legal aid service, may prevent the applicant from being in a position to proceed with his application for leave within the period of fourteen days.”
Special considerations also affect planning decisions and the purpose of the limitation, impugned in this case, has been recognised by the courts.
The second and third respondents have relied on the judgment of Costello J. in Cavern Systems Dublin Ltd. v. Clontarf Residents Association [1989] I.L.R.M. 24. That judgment explained the object of the two-month limitation as follows at p. 29:-
“The object of the section it seems to me was (i) to require that proceedings be instituted at a very early date to ensure that in the national interest uncertainty about future development be dispelled at the earliest possible date; and (ii) to make applicants for development permission and planning authorities aware that the legal validity of a decision was being challenged so as to give them an opportunity to apply for an adjournment of a planning appeal so as to avoid the possibility that unnecessary costs might be incurred and the time of public officials unnecessarily wasted; and to enable An Bórd Pleanála to adjourn an appeal before it if it considered it appropriate to do so during the pendency of the High Court proceedings.”
While the second of those reasons – the existence of a planning appeal – was clearly formulated in response to the particular facts of that case, the court fully approves the explanation given by Costello J. Applicants for planning permission should clearly be on notice at the earliest date that is reasonably possible, if a planning decision is under challenge, but not only by reason of the possible desirability of an adjournment of an appeal hearing. Where there is no appeal, or where the decision has been made on appeal, it is not desirable that developers be left unnecessarily in a state of uncertainty about whether they can safely proceed with a development. As was stated by Finlay C.J. in K.S.K. Enterprises Ltd v. An Bórd Pleanála [1994] 2 I.R. 128 at p. 135, a person who has obtained planning permission should “at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision”.
A number of helpful principles can be deduced from the case of Tuohy v. Courtney [1994] 3 I.R. 1 and The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360. 94 More lengthy limitation periods are laid down for civil actions between private persons or bodies. Their length is an important consideration when judging whether they are fair and just. It is not necessarily unconstitutional to omit a stipulation for extension of time for cases where the wrong was not reasonably discoverable within the longer time allowed. Anxiety, worry and cost for the defendant are important elements in those cases.
It is inherent in the principle of respect for the rule of law that citizens should have the right to challenge the legality of decisions made under public law by administrative bodies. Judicial review is the appropriate procedural vehicle for such challenges. There is a strong public interest in the certainty and finality of administrative decisions. Any attack on their validity should be made at the earliest reasonable date.
Common elements run through the two cases so far cited. The legislature has the primary function of balancing the competing considerations when specifying a limitation period. Nonetheless, there are obvious distinctions between common law actions and applications for judicial review.
The reasoning of the court in Tuohy v. Courtney [1994] 3 I.R. 1 was, in some important respects particular to that case and is, to that extent, distinguishable. The court was clearly very much influenced by the substantial period, six years, involved in that case. The protection of defendants from stale claims and the need for the courts to have before it oral evidence based on the accuracy of recent recollection and complete documentary evidence are less compelling justifications for the absence of a power to extend, where the limitation period is a mere two months. In this type of case, it is very much less likely that recollection will not be fresh or that relevant documents will not be available. If they were not, a court would be less likely to exercise a power to extend. The court in Tuohy v. Courtney, also identified, as a third justification, the desirability of certainty in respect of claims, a matter which has been clearly identified as the prime consideration in the case of planning decisions.
The imperative of certainty in administrative decisions, both in the general sense explained in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360, and in the particular context of planning decisions must be weighed against the equally important principle laid down in that case that, in a state based on the rule of law, any person affected by an administrative decision has a constitutionally protected right of access to courts to contest its legality.
It has been said that the planning code is entirely a creature of statute. In its modern form, introduced into this State in 1963, it restricts the rights of owners of land by prohibiting them from building on or developing them without the benefit of a permission granted by a public authority. The courts have consistently interpreted the legislation as providing for a scheme for development in which the interested parties are not only the applicant for permission and the planning authority but also members of the public who may be interested in or affected by development. Hence, it is obligatory to give public notice of intended developments. A development may affect the environment generally, but is most likely to affect the amenities of those living or working closest to the proposed site. It follows that persons, such as the applicants, have a right to reasonable notice of what is proposed. Unlike non-nationals, affected by the Illegal Immigrants (Trafficking) Bill 1999, the applicants were not entitled to actual notice of an application, but only that proper public notice should be given in compliance with the statutory provisions. It is not contested that the applicants could not reasonably have known that the notice party had, on foot of a requirement of the planning authority, been required to lodge substantially modified plans. The planning authority had not required any new public notice. The court has decided that this decision was based on an incorrect interpretation by the planning authority of its discretionary power under the regulations and that this failure was such as to undermine the validity of the planning permission. It follows that the applicants were deprived of any reasonable opportunity to challenge the validity of the planning permission by an unlawful act of the planning authority within the two-month limit. Nonetheless, the effect of s. 82(3B)(a)(i) is to deny the applicants any opportunity to ask the High Court, even in these circumstances, to extend the time.
Counsel for the second and third respondents claimed that the Oireachtas made the deliberate choice to re-enact the absolute time limit in 1992 and urged the court to accept that this demonstrated that the choice was not irrational. While it is legitimate for the second and third respondents to rely on the re-enactment of the provision, it must, therefore, be equally relevant to note that s. 50 of the Planning and Development Act 2000 permits an extension of the eight week time limit there enacted where “there is good and sufficient reason for doing so.” While counsel is right to say that the latter provision does not necessarily imply that s. 82(3B)(a)(i) is unconstitutional, it is a useful and relevant indicator of what may be considered fair and just in such an enactment. Moreover, the Oireachtas may indeed, having regard to the considerations addressed above, be entitled to fix an absolute time limit of a short duration, such as two months, where the persons to whom it applies have in fact had a full opportunity to bring proceedings within that limited period but that is not the situation here for the reasons already explained.
The court considers that s. 82(3B)(a)(i) constitutes an injustice to such an extent that in exercising its discretion to exclude any power to extend time for cases such as the present, the legislature undermined or compromised a substantive right guaranteed by the Constitution, namely the right of access to the courts. The applicants, through no fault of their own but through the unlawful act of the decision maker, were deprived of any genuine opportunity to challenge the legality of the decision within the permitted time. For these reasons, the court concludes that the High Court was correct in holding that the provision in question is repugnant to Article 40.3 of the Constitution. It dismisses the appeals.
Blehein v Minister for Health
[2004] I.E.H.C. 374
Judgment of Miss Justice Mella Carroll delivered the 7th day of December, 2004.
This is an action challenging the constitutionality of s. 260 of the Mental Treatment Act, 1945 as amended (the 1945 Act). Section 260 of the 1945 Act as amended by s. 2(3) of the Public Authorities Judicial Proceedings Act, 1954 provides as follows:
(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.
(2) Notice of an application for leave to the High Court under sub-section 1 of this section shall be given to the person against whom it is proposed to institute the proceedings, and such person shall be entitled to be heard against the application.
(3) Where proceedings are by leave granted in pursuance of sub-section 1 of this section, instituted in respect of an act purporting to have been done in pursuance of this Act, the court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.
The plaintiff, who was diagnosed as suffering from paranoid schizophrenia, was admitted to St. John of God Hospital, Stillorgan, County Dublin on three occasions from 25th February, 1984 to 16th May, 1984, from 29th January, 1987 to 16th April, 1987 and from 17th January, 1991 to 7th February, 1991. He applied for and was refused leave to challenge his committal.
The most recent judgment of the Supreme Court was delivered by McGuinness J. on 31st May, 2002 (unreported) (Blehein v. St. John of God Hospital and Anor.). The background facts are set out in that judgment as also in an earlier reported judgment of the Supreme Court (Blehein v. Murphy & Ors. [2000] 3 I.R. 359).
In the proceedings against St. John of God Hospital, the plaintiff sought at a very late stage to amend his pleadings to include a constitutional challenge to s. 260. However, McGuinness J. said at p. 27 that to amend an application for leave to appeal under s. 260 to include a constitutional challenge was not a satisfactory form of procedure. She said his correct course would be to commence new proceedings by plenary summons in order to challenge the constitutionality of the section. That is what he has now done.
The plaintiff argues:
(1) that the presumption of constitutionality does not apply if the impugned statutory provision plainly shows on its face a repugnancy to the Constitution (Loftus v. AG [1979] I.R. 221 at 238).
(2) Each citizen has a right of access to the courts pursuant to Article 40.3 of the Constitution. To deny leave to institute proceedings is to deny access to the courts and is to deny access to justice. Article 34 provides:
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution …”
(3) The High Court and on appeal the Supreme Court have a duty to protect rights guaranteed by the Constitution. It is impossible that the High Court should have a peremptory duty to administer justice and at the same time a statutory duty under section 260 to deny access to justice. The two are mutually exclusive and cannot co-exist in the same office. It must follow that section 260(1) is an unwarranted interference by the Oireachtas in the operation of the courts in a judicial domain.
(4) Section 260 is a legislated denial of justice contrary to Article 6 of the Constitution. Article 6 provides:
“These powers of government (i.e. legislative, executive and judicial) are exercisable only by or on the authority of the organs of State established by this Constitution.”
(5) The imposition of conditions (acted in bad faith or without reasonable care) is a disability imposed by statute for those seeking redress against the provisions of the 1945 Act. Those affected by the Act are already disadvantaged and the provision is there for legislated prejudice.
(6) No objective criteria have been laid down by the courts whereby bad faith can be established. You cannot look into a person’s mind to see what their motives were. In the absence of defined objective criteria it is an impossible condition. Reasonable care in relation to matters arising under the Act may only be established with the aid of psychiatric evidence which in this country is unavailable if the profession is under attack. Lack of reasonable care has to do with the tort of negligence and has no part in the vindication of personal human rights under the Constitution. The conditions are therefore impossible. For the courts to deny justice based on them is an act ultra vires the courts as the courts cannot act contrary to justice.
(7) The nature of the guarantee in Article 40.3.1 is according to the Irish version: “Gan cur isteach” i.e. “not to interfere with” rather than “to respect”, which is the English version. And the phrase “sa mhéid gur féidir é” means “as far as it is possible” rather than “as far as practicable”, which is the English version. He claims that these rights are absolute or almost absolute.
(8) He claims he is entitled to sue for the enforcement of his constitutional rights and is also entitled to sue for damages.
(9) The plaintiff can only enforce his constitutional rights on fulfilment of either of two conditions, bad faith or negligence to the satisfaction of the court. The imposition of these impossible conditions is an unwarranted interference with and negation of his rights as a citizen.
(10) Denial of access to the courts is ultra vires judicial power. By refusing him access to justice on diverse dates the court failed in its constitutional mandate and violated his right to justice. The subordination of the courts to the legislature is not countenanced by Article 6 of the Constitution. The independence of the courts from the legislature is an essential cornerstone of democracy.
“This court cannot in deference to an act of the Oireachtas abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized” per Gavin Duffy J. Buckley v. The Attorney General [1950] I.R. 67 at p. 70.
“No court under the Constitution has jurisdiction to act contrary to justice” per O’Higgins C.J. State (Healy) v.O’Donoghue [1976] I.R. 325 at p. 348.
A statute cannot give the court such jurisdiction (The Educational Company of Ireland v. Fitzpatrick [1961] I.R. 345 per Budd J. at pp. 361, 368 and 397.
The plaintiff also sought to argue the effects of ss. 185 and 186. Following objection by the State I disallowed the argument as this case is not concerned with the constitutionality of ss. 185 and 186. I was informed that other proceedings are still extant dealing with the interpretation of the statutory scheme under ss. 185 and 186 and this is a case waiting to be called on.
The State contests the application on the basis that s. 260 is a legitimate restriction of the personal rights of the plaintiff having regard under Article 40 to his difference in capacity.
Reference was made to a similar requirement that the High Court be satisfied that there are “substantial grounds” for contending in certain applications for leave to apply for judicial review that various Acts, Orders and Directions are invalid or ought to be quashed.
In the Local Planning and Development (Act), 1992, s. 19(3)3B(a)(ii) referring to an application for leave to apply for judicial review, provides:
“And such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.”
Similar provision is provided in s. 12(2)(b) of the Transport (Dublin Light Rail) Act, 1996 and in s. 43(5)(b)(ii) of the Waste Management Act, 1996, among others.
The Illegal Immigrants (Trafficking) Bill, 1999 (reported [2000] 2 IR 360) was referred by the President to the Supreme Court as to whether certain sections (including s. 5) were repugnant to the Constitution or to any provision thereof.
Section 5(2) referring to an application for leave to apply for judicial review, had a provision in sub-para. (b):
“Such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.”
In relation to the question of “substantial grounds” the Supreme Court said per Keane C.J. at p. 394:
“The court is of the view that the imposition of a requirement to show substantial grounds in an application for leave to apply for judicial review is one which falls within the discretion of the legislature. It is not so onerous either in itself or in conjunction with the fourteen day limitation period as to infringe the constitutional right of access to the courts or the right to fair procedures.”
Reference to English statute law (s. 141 of the Mental Health Act, 1959 similar to s. 260) or reference to English case law was not in my opinion helpful as this case is based on an interpretation of the Irish Constitution.
The State referred to the judgment of Finlay C.J. in Murphy v. Green [1992] I.R. 566 where he said at p. 572:
“Section 260 of the Mental Treatment Act, 1945 is prima facie a curtailment of the constitutional right of every individual of access to the courts to the extent that it requires a precondition of leave of the court for the bringing by him of a claim for damages for an asserted wrong.
It seems reasonable, as was stated by O’Higgins C.J. in O’Dowd v. North Western Health Board ([1983] I.L.R.M. 186) that one of the reasons for this curtailment is to prevent a person who is or has been thought to be mentally ill from mounting a vexatious or frivolous action or one based on imagined complaint.”
He also referred to In Re R Limited [1989] I.L.R.M. 757 in which it was emphasised that the section constituting an expressed legislative exception to the general provision contained in Article 34 of the Constitution for the administration of justice in public must be strictly construed in the sense that it must not be availed of except where it was essential to do so.
He said “The application of a similar principle to the interpretation of s. 260 of the 1945 Act appears to me to be mirrored (though not expressly referred to) in that portion of the judgment of O’Higgins C.J. which I have already quoted which states:
“As the action deals with the mentally ill or those thought to be so, it does not seem to me that this limitation is unduly restrictive or unreasonable (O’Dowd v. North Western Health Board [1983] I.L.R.M. 186 at 190).”
The State emphasised that the presumption of constitutionality applied. It was not a prohibition but a curtailment of access to the courts confined to civil proceedings and did not apply to judicial review or habeas corpus.
In my opinion there is as a very real difference between the provisions of the various Acts quoted by the State which provide that leave to apply for judicial review shall not be granted unless the High Court is satisfied there are “substantial grounds” for contending a decision (etc.) is invalid or ought to be quashed and Section 146 of the 1945 Act which provides that leave to institute civil proceedings shall not be granted unless the High Court is satisfied that there are “substantial grounds” for contending specific grounds exist. In the former the High Court is at large to decide what grounds would justify an application provided they are substantial. Under s. 146 the High Court is confined to considering two grounds (i.e. acting in bad faith or without reasonable care) and its only discretion is in determining whether either of those grounds is substantial.
In my opinion the limitation of access to the courts on two specified grounds constitutes an impermissible interference by the legislature in the judicial domain contrary to Article 6 of the Constitution providing for the separation of powers and Article 34 providing for the administration of justice in the courts.
The legislature is permitted to provide that whatever grounds are deemed by the High Court in its discretion to be worthy of consideration in deciding whether to grant leave to apply to court should be substantial (see In Re Illegal Immigrants (Trafficking) Bill [2000] 2 IR 360). But in my opinion the legislature is not entitled to limit access to the High Court on specific grounds as provided in s. 146. This provision is apparent on the face of the section therefore the presumption of constitutionality does not apply (see Loftus v. A.G. [1979] I.R. 221).
Since the relief sought by the plaintiff basically consists of seeking a declaration setting out his arguments, it seems to me the appropriate order is a declaration that s. 260 of the Mental Treatment Act, 1945 (as amended) is unconstitutional having regard to Article 6 and Article 34 of the Constitution.
Approved : Carroll J.
Judgment of Mr Justice Finnegan delivered on the 18th day of November 2010
This appeal concerns one of several sets of proceedings instituted by the appellant which concern the Bovine T.B. Eradication Scheme operated by the Minister for Agriculture, Food and Forestry (“the Minister”). In short in these proceedings he claims that the scheme as operated infringes the Constitution, is contrary to Directive 64/432/EEC (as amended), Directive 77/391/EEC and the European Convention for the Protection Human Rights and Fundamental Freedoms. Further he claims that the scheme operated under the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 was operated contrary to the objectives of the Diseases of Animals Act 1966 and was ultra vires the Diseases of Animals act 1966. Central to these complaints is the extra statutory scheme of compensation operated by the Minister for Agriculture, Food and Forestry in place of the statutory scheme provided for in section 22 of the Act of 1966. In addition he claims that his cattle herd had been unlawfully restricted and in that regard alleges mala fides and claims damages and he also claims damages for breach of his constitutional right to privacy.
While the applicant appeared before the High Court and before this court as a personal litigant (as he did in several other actions which he instituted against the Minister) he is not a lay litigant as ordinarily understood having qualified in 2000 as a barrister in Northern Ireland and was subsequently admitted in this jurisdiction.
The action was heard before Laffoy J. over ten days in May and June 2004. The judgment of the High Court ran to fifty nine pages and for the reasons therein clearly set out the appellant’s claims were dismissed. Having regard to the grounds of appeal relied upon by the appellant and the course taken by the appeal before this court it is unnecessary to set out in greater detail the appellant’s claims. For the like reason it is unnecessary to recite the evidence before the High Court, the submissions of the parties to the High Court or the judgment of the learned trial judge save where that is required for the purposes of this judgment.
The Notice of Appeal
The grounds of appeal are as follows:-
“1. The proceedings before the High Court on the 11th, 12th, 13th,14th, 18th, 19th, 20th and 21st days of May 2004 and the 9th and 10th days of June 2004 were grossly unfair to the plaintiff/appellant:
(a) Ms Justice Laffoy was biased against the plaintiff/appellant in that:
(i) Ms Justice Laffoy engaged in disgraceful attacks upon the plaintiff/appellant’s character and integrity;
(ii) Ms Justice Laffoy belittled the plaintiff/appellant’s EU Citizenship Rights in Ms Justice Laffoy’s in obstructing meaningful argument in respect of the necessity to have issues arising out of the impact of EU law, on these proceedings referred to the Court of Justice of the European Communities (under Article 234 of the EC Treaty).
(iii) Ms Justice Laffoy did not approach the proceedings with an open mind;
(iv) Ms Justice Laffoy refused to consider an amendment to the pleadings to give greater effect to the justice of the plaintiff/appellant’s claim;
(v) Ms Justice Laffoy refused to heed, consider or entertain applications for rulings made by the plaintiff/appellant during the proceedings;
(vi) Ms Justice Laffoy’s eyes and ears were closed to the evidence before Ms Justice Laffoy justifying plaintiff’s/appellant’s claims;
(vii) Ms Justice Laffoy’s eyes and ears were closed to the evidence before Ms Justice Laffoy fatal to defendant’s/respondent’s denial of plaintiff/appellant’s claim;
(viii) Ms Justice Laffoy refused to receive relevant evidence by plaintiff further justifying plaintiff/appellant’s claims.
2. The judgment of Ms Justice Laffoy delivered on the 13th day of July 2004 is grossly unfair in that:-
(a) It is wrong in fact and in law.
(b) It is not the product of reasonableness or fair play.
(c) It avoids mention of and as a consequence conceals the import of evidence before Ms Justice Laffoy justifying the plaintiff/appellant’s claim in this action;
(d) It avoids mention of and as a consequence conceals the import of evidence by plaintiff/appellant justifying plaintiff/appellant’s claims in this action;
(e) It avoids mention of and as a consequence conceals the import of legal precedent and legal submissions by plaintiff/appellant justifying plaintiff/appellant’s claims in this action;
(f) It fails to vindicate plaintiff/appellant’s access to justice – the right to one’s day in court – by ignoring the fundamental tenet of justice that to hear a litigant should involve truly listening to that party: Ms Justice Laffoy’s judgment, firstly, fails to demonstrate that plaintiff/appellant’s arguments were seriously considered, secondly, fails to demonstrate that the scales of justice were tipped by the weight of reason not prejudice or caprice.
3. Ms Justice Laffoy’s utterances and treatment of the plaintiff/appellant combined to deny plaintiff/appellant a fair and impartial hearing contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
Proceedings in the High Court
At the commencement of the proceedings in the High Court the appellant accepted that he could not re-litigate matters raised by him in two previous sets of proceedings and that he could not do so, as he sought to do, by annexing two statements of claim from such proceedings to the statement of claim in the present proceedings. He likewise accepted that he could not litigate a third set of High Court proceedings, the High Court Record No. 2744P/1997, John Rooney Plaintiff and Liam Fitzgerald, Patrick Vincent O’Reilly and Patrick Joseph Hand Defendants which concern the alleged unlawful restriction of his herd and mala fides in relation to the same, those issues being more properly dealt with in those proceedings.
In her judgment the learned trial judge made a number of findings of fact as follows:-
1. The declaration of the appellant’s holding to be a restricted holding pursuant to Article 12 of the 1989 Order on 7th April 1993 was a valid declaration. On the basis of the evidence of Mr O’Reilly, Senior Veterinary Officer, there were reasonable grounds for suspecting that Bovine TB was present in the appellant’s herd. In her judgment the learned trial judge detailed the evidence which gave rise to the reasonable suspicion.
2. An animal of the appellant in the opinion of Mr Hand the Minister’s veterinary inspector presented as a reactor on the 7th May 1993. The animal was referred to by the learned trial judge as “the contentious animal” and will be so referred to hereinafter. To be classified as a reactor the test is whether a veterinary inspector believes or suspects that the animal is affected or is capable of infecting other animals. The contentious animal had reacted to tuberculin and Mr Hand was correct to classify it as a reactor.
3. The appellant refused to allow Mr Hand to punch and tag the reactor.
4. That Mr Hand and Mr McPhillips were on the plaintiff’s lands lawfully when the test of 7th May 1993 was conducted.
5. The decision of Monaghan District Court of 29th May 1995 and clear tests completed on the 3rd June 1995 and 12th August 1995 did not alter the status of the contentious animal. The appellant was charged with refusing to permit the punching and tagging of the animal considered to be a reactor; the charges were dismissed.
6. The appellant refused to allow Mr Patten to conduct a herd test on the 25th October 1995.
7. No proof was adduced of the diseased status of the reactor prior to it being put down. The District Veterinary Officer, Ballybay, was unable to perform a post-mortem on the animal as it had been opened up and parts removed. Mr Pottie a Veterinary Surgeon who carried out a post-mortem on the animal at the request of the appellant was not called to give evidence. The learned trial judge ruled that Mr Pottie’s report was of no probative value.
8. The tests conducted in May and June 1996 were necessary as a pre-requisite to the de-restriction of the appellant’s herd and there was no delay in conducting those tests.
9. While there was no evidence of Bovine Tuberculosis in the appellant’s herd during the period of restriction, the procedures and sanctions to which the plaintiff’s holding and herd were subjected are not predicated on the existence of Bovine Tuberculosis in the herd.
10. Neither the Minister nor any of his officials were motivated by malice or bad faith towards the appellant.
The learned trial judge went on to deal with the plaintiff’s challenge to the scheme. She noted that the respondents did not seek to rely on res judicata but sought to answer each and every complaint of the appellant. The learned trial judge identified the net issue arising in the proceedings as whether the appellant had established that between 1993 and 1996 the scheme as operated by the Minister was invalid in one or more of the manners asserted by the appellant so as to give rise to an actionable wrong on the part of the Minister which would sound in damages. The learned trial judge held that in essence the case sought to be made by the plaintiff in these proceedings, that the scheme as operated is ultra vires the Act of 1966, was the same as the case he made in Rooney v The Minister for Agriculture and Food and Ors [1991] 2 I.R. 539. The Supreme Court there held that the Minister was not obliged to operate the provisions of section 58 of the Act of 1996 and that accordingly the 1989 Order is not ultra vires the Act of 1996 on the grounds alleged by the appellant. At the time the acts and omissions on the part of the respondents of which the appellant complains in these proceedings and which occurred between 1993 and 1996 the Supreme Court had given its imprimatur to a similar scheme operated in the previous decade. When the present proceedings were initiated, the High Court in Grennan v The Minister for Agriculture, Food and Forestry, unreported, the High Court 4th October 1995 had considered the implementation of the scheme in the period with which the present proceedings are concerned. Murphy J. there held that the failure of the applicant to allow tests to be carried out on his herd under the scheme otherwise than in accordance with compensation under the Act of 1966 amounted to a refusal to permit his herd to be tested and gave rise to a power to issue a restriction notice under Article 12 of the 1989 Order. Having regard to the foregoing she found the appellant’s allegation of mala fides unsustainable. The appellant also submitted that he had a legitimate expectation that the statutory compensation scheme would be implemented and as it had not that he had an entitlement to damages. The learned trial judge rejected this submission on the basis that the stance adopted by the appellant was at variance with the legal position as laid down by the Supreme Court in an action in which he was plaintiff and accordingly that to allow the submission would be to permit a collateral attack on the judgment of the Supreme Court.
The learned trial judge dealt with a submission that the operation of the scheme in relation to compensation on an extra statutory basis was unconstitutional. The appellant claimed to be entitled to the live market value of an animal destroyed rather than an ex gratia sum fixed by the Minister. The learned trial judge considered and agreed with the approach of Murphy J. in Grennan v Minister for Agriculture, Food and Forestry and she held that the scheme was an entirely reasonable method of reconciling the interest of a herd owner with a diseased or suspected diseased animal and the requirement of the common good in preventing the further spread of disease and that the scheme accorded with the Constitution.
In relation to the submission that the scheme was contrary to the European Convention on Human Rights and Fundamental Freedoms the learned trial judge held that the Convention was not part of domestic law of the State at the relevant time and that an action for damages did not lie for an alleged breach of rights under the same between 1993 and 1996.
The learned trial judge characterised the appellant’s position as follows. The Minister’s officials acted on the authority of the Act of 1966 and the 1989 Order and the question of compensating the plaintiff for a slaughtered animal never arose because of the conduct of the plaintiff. He refused the compensation which was on offer if he slaughtered the contentious animal. She went on to deal further with the issue as follows:-
“For the purpose of considering the defendant’s argument, I will assume that there has been a failure to implement Article 3.2 into national law and that the first and second criteria for State liability laid down in Francovich/Dillenkofer are complied with. Looked at in the abstract, the third condition would be fulfilled, if, as a result of a failure to transpose into national law the obligation to ensure that a herd owner is appropriately compensated (whatever, on its proper construction, that expression entails) for the slaughter of an animal under a Disease Eradication Plan mandated by Directive 78/52/EEC, a herd owner received no compensation or less than appropriate compensation for a slaughtered animal thereby incurring loss. That is not what happened in the plaintiff’s case between 1993 and 1996.
What happened was that the plaintiff’s herd was lawfully restricted under Irish law. Shortly thereafter, when the contentious animal was declared to be a reactor, despite being persistently urged to do so the plaintiff refused to have the animal slaughtered and to initiate the process which would have led to de-restriction. The plaintiff claims damages for the losses he alleges flowed from the restriction of his herd between 1993 and 1996. That situation was brought about by the plaintiff’s own conduct.
It is no answer to the defendants contention that the plaintiff is not entitled to recover because he was the author of his own misfortunate that, but for the non-implementation of Article 3.2, the plaintiff’s conduct would have been different. The extent of reparation to which an injured party may be entitled for any breach of Article 3.2 in this jurisdiction is governed by Irish law and, as a matter of community law as laid down in Dillenkofer, an Irish court is entitled to enquire whether the plaintiff had taken reasonable care to avoid loss or damage or to limit its extent. The losses which the plaintiff alleges he incurred between 1993 and 1996 could have been wholly avoided if the plaintiff had complied with the provisions of the 1989 Order in relation to herd restriction, herd testing and the slaughter of the reactors, to which he professes having no objection.
Accordingly, the plaintiff has not established that there is a causal link between the losses in respect of which he claims damages and the State’s obligation to implement Article 3.2.”
Further the appellant failed to produce any evidence that there would be a difference between the carcass value and the reactor grant on the one hand and appropriate compensation within the meaning of Article 3.2 on the other hand.
The final issue to arise on the pleadings was the claim relating to the “passing of private and confidential sensitive constitutional communications.” This concerned a letter written by the appellant on the 8th March 1994 to the President of Ireland, the Ceann Comhairle of the Dáil, the Taoiseach and the Chief Justice in which he made specific complaints against six former and serving judges of the Superior Courts alleging improper exercise of their judicial functions. That letter was discovered by the defendants in the present proceedings. The learned trial judge held that it was properly discovered and that no right to privacy could attach to the appellant in relation to the same.
Proceedings before the Supreme Court
In opening the proceedings the appellant withdrew the allegation of bias against Laffoy J. Accordingly the several matters listed under that heading at 1 in the grounds of appeal were not pursued. Nonetheless it was appropriate for the purposes of the appeal to consider the transcript of the proceedings in the High Court. Having considered the transcript I am satisfied that the allegation of bias could not be supported and that it was appropriate that the appellant did not persist with this ground.
The remaining grounds 2 and 3 cited above are couched in the most general terms. However the appellant’s written submission set out specific complaints as to the manner in which the learned trial judge conducted the trial and dealt with various applications made by the appellant. The respondents in their written submissions dealt with each complaint without objection as to whether or not it was within the grounds of appeal. In dealing with each individual complaint this court has had the benefit of the learned trial judge’s careful and detailed judgment and a transcript of the ten days of hearing. In what can only be regarded as a significant concession to the appellant the learned trial judge dealt with matters which were clearly res judicata. Further, a number of the matters raised could be considered as merely restating the grounds of appeal on the issue of bias: notwithstanding this it is proposed to deal with each of these grounds in the light of the appellant’s written submissions upon which he relied before this court. I propose to deal with the same in fairness to the learned trial judge against whom in the notice of appeal at 1 serious allegations are made although the same have now been withdrawn.
I propose to deal with each of the matters raised in the appellant’s written submissions in relation to grounds 2 and 3 in the notice of appeal in the sequence in which they are therein set out.
1. The learned trial judge failed to deal with Article 15 of the Constitution and the decision of the Supreme Court in O’Neill v Minister for Agriculture and Food [1997] 2 I.L.R.M. 435.
The appellant argued that an administrative scheme could not validly be used to implement EC regulations and that implementation could only be achieved by laws passed by the Oireachtas. The appellant’s claim was for damages. The learned trial judge for the purposes of the judgment assumed that there had been a failure to implement the relevant article into national law and I have quoted above the passage from her judgment in which she dealt with the appellant’s submission on that basis. The appellant, the learned trial judge found as a fact, failed to comply with the provisions of the 1989 Order and for that reason no entitlement to compensation arose. He failed to establish a causal link between the losses in respect of which he claimed and the State’s obligation to implement Article 3.2 of the Directive. I am satisfied that the approach adopted by the learned trial judge gave full effect to the provisions of Article 15 of the Constitution and the decision of this court in O’Neill v Minister for Agriculture and Food.
2. The learned trial judge refused to heed, consider or entertain applications made by the appellant.
The appellant relies on six instances in which applications made by him were not acceded to as follows:-
(i) The appellant asked the learned trial judge to strike down Article 13 of the 1989 Order. The learned trial judge pointed out that no such relief had been claimed, the only claim being for damages. The learned trial judge refused to permit an amendment of the pleadings to enable the appellant to claim declaratory relief on the basis that it was at that stage of the proceedings too late to permit an amendment. I am satisfied that the discretion of the learned trial judge was properly exercised in this case and that to permit the amendment at that stage of the proceedings would have been oppressive of the respondents. The appellant has not pointed to any error in principle in the manner in which the learned trial judge exercised her discretion. In these circumstances this court should not interfere.
(ii) On day 8 of the hearing Mr Fitzgerald, a principal officer in the Department of Arts, Sport and Tourism was being cross-examined by the appellant. The appellant sought to examine Mr Fitzgerald about a complaint which the appellant had made to the Ombudsman. Counsel for the respondents objected to the line of questioning on the ground that it was irrelevant. The learned trial judge refused to allow the line of questioning. Later during the cross-examination of that witness the appellant again raised the possibility of declaratory relief: the learned trial judge made it clear that she would not, on the pleadings, grant such relief. Finally the appellant complains that in her judgment the learned trial judge said:
‘while the plaintiff has not sought any relief by way of declaration…’ and that this was an attempt by her to conceal the appellant’s applications. Having carefully considered the transcript I am satisfied that the question sought to be asked of Mr Fitzgerald was indeed irrelevant to the issues before the court and in any event was not a proper question for that witness. The learned trial judge on day 1 of the hearing had made it quite clear that she would not permit an amendment of the pleadings to claim declaratory relief. The statement contained in the judgment complained of is factually correct: the appellant’s pleadings did not claim declaratory relief.
(iii) Admission of documents.
During the course of the hearing the respondents made additional discovery. The appellant applied to have the newly discovered documents admitted into evidence and wished to put them to Mr Fitzgerald in cross-examination. Counsel for the defendants agreed to the admission of the documents. The learned trial judge carefully considered each of the documents and ascertained the purpose for which the appellant required to have the same admitted in evidence. The learned trial judge admitted the documents and permitted two of the respondents’ witnesses, Mr O’Reilly and Mr Patton, to be recalled so that counsel for the respondents could put the documents to them and the witnesses then being made available for cross-examination on the documents by the appellant. The learned trial judge stipulated that the cross-examination should be only in relation to the documents. Having carefully considered the transcript I can find no objection to the manner in which the learned trial judge proceeded. The appellant refers under this heading to the transcript of day 10 at pages 55, 56 and 101: there is one intervention by the learned trial judge in those pages of the transcript at page 101. The appellant stated:-
“…then Mr Sanfey refers to the fact that there was a failure to plead matters relating to declarations and that any of the statutory instruments are ultra vires. If your Lordship goes to paragraph 2 of the Endorsement of Claim you will see that the Bovine TB Eradication Scheme is still there, that it is ultra vires the Diseases of Animals Act.”
The learned trial judge responded:-
“That is an assertion”.
The learned trial judge correctly described the appellant’s pleading as “an assertion”. It was not evidence. She was endeavouring to assist the appellant. I can see nothing wrong in the intervention.
(iv) Failure to strike out the defence for failure to make proper discovery.
During the course of the trial it emerged that the defendants’ discovery had been incomplete. Additional discovery was made on the 8th day of trial. The appellant contends that he applied to have the defence struck out for failure to make proper discovery. Having carefully perused the transcript at the references furnished by the appellant no such application is to be found. In any event such application is a matter for the learned trial judge to deal with in her discretion and I would not interfere with the exercise of that discretion in this case.
(v) The learned trial judge attacked the appellant’s character and integrity.
The appellant refers to three passages in the transcript. Firstly on day 5 of the hearing the appellant was cross-examining the defendants’ witness, Mr O’Reilly. The learned trial judge intervened as follows:-
“You are going around in circles Mr Rooney, and you are being deliberately obstructive, I think, or you are deliberately obfuscating. The answer Mr O’Reilly gave to your question as to why you did not see the whole file was, he told us, what the general policy is, he was talking about general policy, he was not specifically relating to your file.”
The learned trial judge was directing the cross-examination to the evidence given by the witness and she was fully entitled so to do in the context of the appellant’s cross-examination of Mr O’Reilly which spread across days 5, 6 and 7 of the hearing. From the transcript it is difficult to ascertain the relevance of a great deal of the cross-examination. I am satisfied from a perusal of the transcript that the learned trial judge’s intervention was fully justified. Certainly it did not inhibit the appellant in pursuing his cross-examination with considerable gusto and at great length. Considerably greater latitude was extended to the appellant than would be extended to counsel in the like circumstances.
The second objection relates to transcript of day 7 at pages 136 and 137. The appellant once again raised the issue of an amendment to his pleadings to include a prayer for declaratory relief. The learned trial judge remarked that the appellant was wasting time and asked him to get on with his cross-examination of Mr O’Reilly. The learned trial judge then refused an application by the appellant to deal with the Sheehy Report which concerned EU funding of the Bovine TB Eradication Scheme on the basis that it was not relevant to the period with which the appellant’s claim was concerned. The appellant said he would not accept the learned trial judge’s ruling. Having carefully considered the transcript I am satisfied that the learned trial judge both in relation to the amendment of pleadings and to the introduction of the Sheehy Report was correct. I do not see that the learned judge’s comments in relation to these applications could in any way be considered as reflecting on the appellant’s character and integrity.
The third matter raised occurred on Day 9 when Mr O’Reilly was recalled as a witness. The learned trial judge had already made clear to the appellant the matters which could be canvassed with him on cross-examination. The appellant sought to go outside those matters. When he sought to do so the learned trial judge said:-
“You are not getting another bite at that particular cherry, Mr Rooney. These witnesses were recalled because of deficiencies in the Department’s discovery. You were asked to highlight the documentation which was material and should have been discovered. I have allowed the witnesses to be recalled and I have allowed you to cross-examine them in relation to the discovery issue, and I made it clear that we were going to stay within the parameters of this, you are straying outside it and I am not going to allow it.”
Again I do not see how this intervention by the learned trial judge could in any way constitute an attack upon the character and integrity of the appellant.
(vi) In her judgment the learned trial judge omitted reference to evidence “damning” the respondents defence to the action. In relation to this complaint it is sufficient to say that having considered the transcript in its entirety I am satisfied that the learned trial judge in her judgment, as she was entitled to do, recited the portions of the evidence relevant to the issues arising in the action and which she had to determine. There is no requirement, and indeed it would be inappropriate, in the course of her judgment to recite in full the evidence whether relevant or irrelevant and whether accepted or not. It is sufficient if the learned trial judge recites that evidence which is material to the findings of fact and law which she makes on the issues which she has to decide. The learned trial judge in an exemplary manner in her lengthy and detailed judgment did this.
3. The learned trial judge failed to take into account the appellant’s written submissions.
It is quite clear from a perusal of the transcript and the appellant’s submissions that the learned trial judge fully took into account and considered those parts of the appellant’ submissions relevant to the issues which she had to decide. The appellant’s real complaint is that his submissions were not accepted.
4. The learned trial judge failed to acknowledge the fact that evidence was before her conclusive of the fact that the test of 4th to 7th May 1993 was an illegal test.
The assessment of evidence and the acceptance or rejection of any part of the evidence are matters for the trial judge. Unlike this court, the High Court has the opportunity to observe witnesses and their demeanour while giving evidence. If there is evidence before a trial judge upon which he can base his decision this court will not interfere. There was such evidence in this case.
5. The learned trial judge in her judgment misrepresented facts in ten instances.
It is the function of the learned trial judge to make findings of fact upon the evidence before her. If there is evidence to support a finding of fact this court will not interfere with the same. However the nub of the complaint made by the appellant is that the learned trial judge in her judgment did not recite parts of the evidence which he considers to be favourable to him. There was no obligation on the learned trial judge to recite evidence which she did not consider relevant to the issues before her or which she did not accept. I do not propose to set out in extenso the passages of evidence which, in the appellant’s opinion, ought to have been included in the judgment. However having regard to the transcript as a whole and to the issues which were before the learned trial judge I am satisfied that in each of the ten instances it was neither necessary nor appropriate that the passages of evidence, the exclusion of which from the judgment is the basis of this complaint, were either necessary or appropriate to be included in the judgment.
6. The learned trial judge made findings of fact which she was not entitled to make on the evidence.
The appellant cites ten findings of fact in relation to this complaint.
(i) Finding that the declaration of plaintiff’s holding on 7th April 1993 was a valid declaration.
The learned trial judge clearly and correctly sets out in her judgment the requirements of the 1989 Order for the declaration of a holding to be a restricted holding and applied that law to the facts as found. There was clear evidence which, if accepted, supports the finding that the declaration was a valid declaration. This court will not interfere with findings of fact which are supported by evidence.
(ii) The learned trial judge was not entitled to make a finding that the contentious animal had reacted positively to the tuberculin which had been injected on the 4th May 1993 and that Mr Hand was correct in classifying it on the 7th May 1993 as a reactor within the meaning of the 1989 Order.
On a perusal of the transcript I am satisfied that there was evidence to support the finding of fact.
(iii) The learned trial judge was not entitled to find that the appellant refused to allow Mr Hand to punch and tag the reactor. There was no evidence that the animal was a reactor.
Again on a perusal of the transcript it is clear that there was evidence before the learned trial judge, which if accepted, supported the findings. It was unnecessary that the contentious animal should be a reactor: it was only necessary that Mr Hand, a veterinary inspector, believed or suspected that the animal was infected or was capable of infecting other animals. There was evidence to support the existence of such a belief or suspicion and the learned trial judge was entitled to so find. This court will not interfere with findings of fact by the learned trial judge where the same are supported by evidence.
(iv) The learned trial judge was not entitled to find that Mr Hand and Mr McPhillips were on the plaintiff’s holding lawfully when conducting the May 1993 test.
In her judgment the learned trial judge clearly outlined the relevant statutory provisions and the facts proved in evidence necessary to support the finding that Mr Hand and Mr McPhillips were on the plaintiff’s holding lawfully. Perusal of the transcript discloses evidence to support the finding made.
(v) The learned trial judge was not entitled to make a finding that the decision of Monaghan District Court on the 29th May 1995 or the test completed on 3rd June and 12th August 1995 did not alter the status of the contentious animal as a reactor.
As a matter of law the determination of the District Court at Monaghan and the evidence before that court were not binding on the High Court. Further the proceedings before the District Court were conducted on the basis of the criminal standard of proof as opposed to the civil standard of proof applicable in the High Court.
(vi) The learned trial judge was not entitled to make any finding that the appellant refused to allow Mr Patton to conduct a herd test.
Before the learned trial judge there was the clear evidence of Mr Patton as to what occurred. Accepting that evidence the learned trial judge was fully entitled to make the finding of fact about which the appellant complains.
(vii) The learned trial judge was not entitled to make a finding about the diseased status of the contentious animal.
The appellant contends that there was overwhelming evidence that the defendants committed perjury in stating that they genuinely believed the contentious animal was a biological reactor after the events of Monaghan District Court. It is a matter for the learned trial judge to accept one version of events rather than the other. A state of mind is a fact and where there is evidence as to a state of mind the learned judge can accept or reject that. Once there is evidence upon which the learned trial judge can make a finding of fact this court will not interfere with that finding.
(ix) The learned trial judge was not entitled to make a finding that there was Bovine TB in the contentious animal in August 1994.
The appellant contends that the learned trial judge was not entitled to make a finding that the contentious animal was a reactor in the first place and therefore was incorrect in finding that it remained a reactor until it was put down. I have already dealt with the finding by the learned trial judge that the animal was a reactor for the purposes of the scheme as a result of the test on the 7th May 1993. On the basis of this primary finding of fact the trial judge was entitled to draw inferences and in particular an inference that it remained a reactor. The evidence discloses that the appellant refused on a number of occasions to permit the carrying out of further tests which could have clarified whether the animal was or was not a reactor. A postmortem on the animal could also have established this. The appellant had a post mortem carried out by his own veterinary surgeon and because of the removal of parts it was not possible for the defendants to carry out a postmortem which would have clarified the position. On the evidence before her the learned trial judge was entitled to infer in all the circumstances that the contentious animal being a reactor on the 7th May 1993 retained that status for the purposes of the scheme.
(x) The learned trial judge was not entitled to absolve the defendants from their reprehensible conduct towards the plaintiff.
The issue before the court was the legality or otherwise of the defendants conduct be it reprehensible or otherwise. The learned trial judge duly made findings on the basis of the evidence before her. On the evidence before her the learned trial judge was entitled to find that the respondents were not activated by mala fides.
In each of the instances set out above in which the learned trial judge’s findings of fact and inferences from primary findings of fact are challenged it is important to have regard to the role of this court. This is set out in Hay v O’Grady [1992] I.R. 210 as follows:-
“The role of this court, in my view, may be stated as follows:-
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact (see the judgment of Holmes L.J. in The S.S. Gairloch, Aberdeen Glen Line Steamship Company v Macken [1899] 2 I.R. 1 cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate Tribunal is in as good a position as a trial judge.”
In applying this approach to the complaints made by the appellant in relation to the learned trial judge’s findings of fact and inferences therefrom I am satisfied that in each of the ten instances raised above there was before the learned trial judge evidence which, if believed, justified the finding of fact and inferences from the same.
As to the third ground in the notice of appeal I would say this. The learned trial judge displayed indulgence towards the appellant in the manner in which she conducted the hearing of this case in the High Court. The case took an inordinate amount of time and, for the defendants, caused far greater expense than would have been incurred than if the case had been conducted by counsel. The efficient progress of the case was not assisted by the aggressive and truculent attitude adopted by the appellant to counsel for the respondents, the witnesses called by the respondents and not least the learned trial judge. Nonetheless the learned trial judge gave every consideration to the appellant consistent with maintaining fairness to the respondents. A trial must be fair to both parties. I can find nothing in the transcript to support the allegation that the trial was in any way unfair to the appellant. Indeed had the respondents complained of unfairness and oppression to them in the manner in which the appellant conducted the proceedings from their institution such complaint would not be unfounded.
I have attempted to deal seriatim with all the issues raised by the appellant in the written submissions upon which he relied before this court and where the thrust of the submissions was unclear I have given them the construction most favourable to the appellant: I did this on the basis that he appears before the court as a lay litigant and notwithstanding that he is a qualified barrister-at-law.
I would dismiss the appeal.
Rooney v The Minister for Agriculture & Ors
Quinn v Irish Bank Resolution Corporation
[2012] IEHC 261
JUDGMENT of Mr. Justice Kelly delivered on the 4th day of July, 2012
The Issue
1. Does Seán Quinn (Mr. Quinn), the first named third party, who is a bankrupt, have an entitlement to defend these third party proceedings brought against him in circumstances where the Official Assignee in Bankruptcy (the Assignee) has declined to defend them? That is the question that I have to answer.
Background
2. The plaintiffs in the action are all members of Mr. Quinn’s family (the family).
3. The first defendant was formerly known as Anglo Irish Bank Corporation (Anglo) and the second defendant (Mr. Wallace) was appointed as share receiver by Anglo on foot of a number of share pledges and charges on 14th April, 2011.
4. In these proceedings, the family seek a series of declarations of invalidity in respect of charges of shares and personal guarantees made between Anglo and members of the family. The charges and the guarantees were given in respect of borrowings which had been made on a colossal scale. The family also seek declarations of invalidity concerning the appointment of Mr. Wallace as share receiver.
5. It is not necessary for me to dwell in any detail upon the extremely serious allegations which are made by the family against Anglo in support of their claim for declaratory relief. The allegations have already been synopsised by Charleton J. in a judgment in these proceedings which he delivered on 23rd February, 2012, [2012] IEHC 36. He said:-
“If a series of financial transactions can be called horrific, that epithet would apply to the allegations made as plaintiffs by the Quinns against Anglo and against Seán Quinn.”
6. Paragraph 74 of the family’s statement of claim pleads as follows:-
“The sole or dominant motivation of Anglo in making these advances was to support and maintain its share price. Anglo senior management, including its chief executive, supported and encouraged the [contracts for difference] position built up in Anglo shares for the said purpose (including the allocation by Anglo of a significant number of Anglo shares as part of a share placing on the 1st February, 2007, proportionate to what Mr David Drumm estimated to be Bazzely’s total exposure to Anglo at that time). The requirements of Anglo in this regard were further motivated by Anglo’s own knowledge that the affairs of the bank were being, and had been, managed in a fashion that paid no, or no adequate, heed to the requirements of corporate governance or the interests of its shareholders. It is the plaintiffs’ case that insufficient, misleading and inaccurate information was being made available to brokers, shareholders and potential investors, some of the details which are set out below.”
7. On 27th July, 2011, Anglo delivered a defence and counterclaim. Mr. Wallace delivered a defence on the same date. All of the wrongdoing alleged against Anglo is denied and there is a counterclaim against each member of the family.
8. On 10th October, 2011, I granted Anglo leave to issue and serve third party notices on each of the third parties.
9. The third party notice served on Mr. Quinn claims an indemnity from him in the following terms:-
“[Anglo] claims against you an indemnity against the plaintiffs’ claims, insofar as same are grounded on an assertion that securities in the form of share charges and personal guarantees that were obtained by the first defendant from the plaintiffs and which are the subject of the proceedings between the plaintiffs and the first defendant were invalid or otherwise unenforceable, on the grounds that same were obtained in circumstances of improvidence, undue influence, unconscionability or lack of autonomy, to such extent as the court shall determine to be just and equitable, on the grounds that any loss and damage as was allegedly sustained by the plaintiffs (all of which is denied) was caused wholly or alternatively was contributed to by reason of your breach of warranty of authority and/or negligent misstatement and/or negligent misrepresentation and/or deceit.”
10. The statement of claim fleshes out the factual basis upon which this claim is made. But it goes further. In addition to claiming an indemnity it also seeks damages for misrepresentation, breach of warranty of authority, fraud, negligence and conspiracy.
11. On 6th December, 2011, Mr. Quinn delivered a full defence to this statement of claim.
12. Meanwhile, Mr. Quinn, on 10th November, 2011, presented a bankruptcy petition to the High Court of Northern Ireland seeking his adjudication as a bankrupt. The petition was heard by the Master in Bankruptcy who acceded to the application. In his petition, Mr. Quinn asserted that although not then a resident of Northern Ireland, his centre of main interest was at Derrylin, Co. Fermanagh.
13. On 17th November, 2011, Anglo filed an application in the High Court in Northern Ireland to annul the bankruptcy on the basis that that court lacked jurisdiction to open main bankruptcy proceedings under Article 3(1) of EC Regulation 1346/2000. It asserted that the ex parte bankruptcy order had been obtained through misrepresentation and/or non-disclosure.
14. Anglo’s application came for hearing before Deeny J. who reserved judgment. On 10th January, 2012, that judge, in a comprehensive judgment, acceded to Anglo’s claim and annulled Mr. Quinn’s bankruptcy in Northern Ireland.
15. Thereafter, Anglo applied to have Mr. Quinn adjudicated a bankrupt in this jurisdiction and succeeded in so doing.
16. Following adjudication, the Assignee instructed counsel to appear in this litigation and I was informed that it was not the intention of the Assignee to defend Anglo’s claim made against Mr. Quinn in these third party proceedings.
17. On 22nd February, 2012, Anglo brought a motion before the court seeking directions concerning the hearing of the third party proceedings. In particular, Anglo asked the court what, if any, further steps should be taken in the third party proceedings against Mr. Quinn in circumstances where he had been adjudicated a bankrupt and the Assignee did not intend to defend the proceedings. As an alternative, I was asked to make an order that Mr. Quinn be deemed to admit the validity of and be bound by any judgment and/or decision given in the action and on any question specified in the third party notice. In the further alternative, I was asked that, in the event of Anglo being held liable in respect of all or part of the plaintiff’s claim, that an order be made that Mr. Quinn be deemed to admit liability in respect of the indemnity and contribution and further relief claimed against him in the third party notice and that Anglo be at liberty to proceed by way of a motion for judgment in default against Mr. Quinn.
18. When this motion first came on for consideration by the court on 27th February, 2012, Mr. Quinn appeared and indicated a desire to argue that he should be permitted to defend Anglo’s third party proceedings. The matter was adjourned to enable him to prepare to argue that proposition. When the application came to hearing, Mr. Quinn was represented on a pro bono basis by senior and junior counsel.
19. This is my judgment on the question which I identified in the first paragraph of this judgment.
Effect of Adjudication as a Bankrupt
20. Section 44 of the Bankruptcy Act 1988 (the 1988 Act) is contained in Part III of that Act. That Part is headed “Administration of Property”. The subheading is “Effect of Adjudication on Bankrupt’s Property”. Section 44 provides as follows:-
“(1) Where a person is adjudicated bankrupt, then, subject to the provisions of this Act, all property belonging to that person shall on the date of adjudication vest in the Official Assignee for the benefit of the creditors of the bankrupt.
(2) Subject to the provisions of this Act, the title of the Official Assignee to any property which vests in him by virtue of subsection (1) shall not commence at any date earlier than the date of adjudication.
(3) The property to which subsection (1) applies includes –
(a) all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication;
(b) all property which was the subject of any conveyance or transfer which sections 57 , 58 and 59 declare void as against the Official Assignee, subject to the rights of any persons which are preserved by those sections.
(4) The property to which subsection (1) applies does not include –
(a) property held by the bankrupt in trust for any other person, or
(b) any sum which vests in the Official Assignee under section 7 (1) (a) of the Auctioneers and House Agents Act, 1967 , or section 30 (i) of the Central Bank Act, 1971 .
(5) Without prejudice to any existing principle or rule of law or equity, established practice or procedure in relation to damages or compensation recovered or recoverable by a bankrupt for personal injury or loss suffered by him, property which is acquired by or devolves on a bankrupt before the discharge or annulment of the adjudication order (in this Act called ‘after-acquired property’) shall vest in the Official Assignee if and when he claims it.”
21. The word “property” is defined in s. 3 of the 1988 Act, as amended by the European Communities (Personal Insolvency) Regulations 2002, as including things in action. Things in action, of course, include litigation.
22. These statutory provisions divest a bankrupt of his property automatically upon adjudication by operation of law. The bankrupt no longer maintains any interest in the property.
23. As is clear from the section, the property vests in the Assignee. What are the Assignee’s powers in respect of the property?
The Assignee’s Powers
24. Section 61 of the 1988 Act deals with the functions of the Assignee both in bankruptcy and vesting arrangements. Section 61(3) sets out the particular powers which the Assignee has in the performance of his functions. Only some of them are relevant to this application. They are those that are contained in subs. 3(b) – (d). They provide that the Assignee has power:-
“(b) to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging themselves to have any claim present or future, certain or contingent, ascertained or sounding only in damages whereby the bankrupt or arranging debtor may be rendered liable,
(c) to compromise all debts and liabilities capable of resulting in debts and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the bankrupt or arranging debtor and any debtor and all questions in any way relating to or affecting the assets or the proceedings on such terms as may be agreed and take any security for the discharge of any debt, liability or claim, and give a complete discharge in respect thereof,
(d) to institute, continue or defend any proceedings relating to the property.”
25. The decision by the Assignee not to defend the third party proceedings was made by reference to Section 61(3)(d).
26. The Assignee was unable to discern any benefit to be derived for Mr. Quinn’s creditors from defending the third party claim. That was a perfectly proper basis for the Assignee to decide not to defend.
Creditors of a Bankrupt
27. Section 136 of the 1988 Act, deals with the effect of adjudication as a bankrupt on creditors. It provides:-
“(1) On the making of an order of adjudication, a creditor to whom the bankrupt is indebted for any debt provable in bankruptcy shall not have any remedy against the property or person of the bankrupt in respect of the debt apart from his rights under this Act, and he shall not commence any proceedings in respect of such debt unless with the leave of the Court and on such terms as the Court may impose.
(2) This section shall not affect the power of a secured creditor to realise or otherwise deal with his security in the same manner as he would have been entitled to realise or deal with it if this section had not been enacted.”
28. The effect of this statutory provision means that unsecured creditors are deprived of any remedy against the person or property of a bankrupt in respect of the debt apart from whatever rights they are given under the Act. Thus, unsecured creditors have no choice but to participate in the bankruptcy process. They rank equally with one another. They will be paid a dividend once the preferential creditors and the fees and expenses of the bankruptcy have been discharged in full.
29. In the present case, Anglo makes a twofold claim against Mr. Quinn. The first part of the claim is for an indemnity as contemplated by the Civil Liability Act 1961. The second is for damages for negligence, breach of warranty of authority and deceit. Whilst these are framed as separate claims, counsel on behalf of Anglo assured me that the claim for damages would not be pursued should the family fail in their action against Anglo. Thus, although two separate heads of claim have been identified, they will be pursued only in circumstances where there is a finding in the principal action in favour of the family against Anglo.
30. What is not in doubt is that the claim made by the Bank against Mr. Quinn is for damages and is directed towards the assets or estate of Mr. Quinn. This is an important matter to bear in mind for the following reasons.
31. There is a distinction between proceedings which seek to enforce a legal obligation sounding in damages against a bankrupt and those which relate to his personal conduct or misconduct.
32. The matter is put succinctly in the Law of Insolvency (4th Ed.) (2009) written by Prof. Fletcher. At para. 7-008. he says:-
“Furthermore, a distinction is made between proceedings which are designed to enforce a legal obligation owed by the debtor and those which are of a punitive character and are brought on account of his personal misconduct. In the latter type of case – for instance proceedings for contempt of court or for committal of a defaulting trustee – the court of bankruptcy will not intervene.”
This notion is developed in the case law which I will consider later.
33. The claim made against Mr. Quinn in these third party proceedings is not one of the personal claims envisaged in that passage which would exclude the intervention of the bankruptcy court.
Irish Law
34. Anglo says that there is no case law in this jurisdiction which deals precisely with the issue that I am called upon to decide here. It says that the Assignee has a power to continue to defend or to restrain the continued prosecution of litigation against a bankrupt. Where, however, the Assignee chooses that existing litigation will not be restrained or defended, there is no person who has the legal entitlement to defend the case. This, it is said, is subject only to the exception of litigation dealing with personal misconduct of the type described in Fletcher. As this is not such a case, Mr. Quinn cannot defend the third party proceedings.
35. The position in English law is that a bankrupt has no standing to continue to defend or prosecute litigation after his adjudication save in the exceptional circumstances already alluded to. Anglo argues that a similar position obtains in this jurisdiction. It is with a view to obtaining a determination to that effect that the current motion is brought.
English Law
36. The position in English law on the ability of a bankrupt to defend a claim which the trustee in bankruptcy is unwilling to defend is dealt with by a decision of the Court of Appeal in Heath v. Tang [1993] 1 WLR 1421. In that case there were two appeals before the Court of Appeal. In each case, the applicant, who had been adjudicated bankrupt, sought to appeal against the judgment for a liquidated sum on which the bankruptcy proceedings had been brought. In the first case, the trustee in bankruptcy indicated his unwillingness to pursue any such appeal. In the second case, no trustee had yet been appointed. On applications for leave to appeal, it was held that no special considerations applied to the judgments on which the bankruptcy orders were founded to justify departing from the general principle that on adjudication a bankrupt was divested of an interest in his property and liability for his debts. Accordingly, neither applicant had locus standi to institute an appeal.
37. The judgment of the court was delivered by Hoffmann L.J. (as he then was).
38. In the course of his judgment, he said:-
“By section 306 of the Insolvency Act 1986 the bankrupt’s estate vests in his trustee when appointed and by section 285(3), no creditor has after the making of a bankruptcy order any remedy against the property or person of the bankrupt in respect of any debt provable in the bankruptcy. The effect is that the bankrupt ceases to have an interest in either his assets or his liabilities except in so far as there may be a surplus to be returned to him upon his discharge. What effect does this have upon legal proceedings to which he is a party? We shall consider the position first when the bankrupt is plaintiff and secondly when he is defendant.”
39. The statutory provisions in the English legislation cited by Hoffmann L.J. do not differ materially from the provisions of s. 44 and s. 136 of the 1988 Act.
40. The judge then went on to consider the question of the bankrupt as plaintiff. Whilst that is not of direct relevance in the instant case, there are some observations which are pertinent. He pointed out that the property which vests in the trustee includes “things in action”. The same position obtains in this State. He said:-
“Despite the breadth of this definition, there are certain causes of action personal to the bankrupt which do not vest in his trustee. These include cases in which ‘the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property’.”
41. He pointed out that actions for defamation and assault are obvious examples of such cases. He pointed out that bankruptcy does not affect the bankrupt’s ability to litigate such claims. He went on:-
“But all other causes of action which were vested in the bankrupt at the commencement of the bankruptcy, whether for liquidated sums or unliquidated damages, vest in his trustee. The bankrupt cannot commence any proceedings based upon such a cause of action and if the proceedings have already been commenced, he ceases to have sufficient interest to continue them.”
42. The judgment went on to deal with the bankrupt as a defendant. Hoffmann L.J. had this to say on that topic:-
“In cases in which the bankrupt is defendant, there is of course usually no question of the cause of action having vested in the trustee. Unless the defence is set-off (a situation to which we shall return later) the bankrupt will not be asserting by way of defence any cause of action of his own. But in cases in which the plaintiff is claiming an interest in some property of the bankrupt, that property will have vested in the trustee. And in claims for debt or damages, the only assets out of which the claim can be satisfied will have likewise vested. It will therefore be equally true to say that the bankrupt has no interest in the proceedings. As we have seen, section 285(3) deprives the plaintiff of any remedy against the bankrupt’s person or property and confines him to his right to prove.
On the other hand, there are actions seeking relief such as injunctions against the bankrupt personally which do not directly concern his estate. They can still be maintained against the bankrupt himself and he is entitled to defend them and, if the judgment is adverse, to appeal. This distinction was the basis of the decision of the Court of Appeal in Dence v. Mason [1879] W.N. 177 in which a bankrupt wished to appeal against an order made before the bankruptcy granting an injunction to restrain passing off and ordering him to pay costs. His trustee declined to appeal but the court said, at p. 177, that the bankrupt himself could appeal against the injunction
‘which was a personal order against him, notwithstanding the bankruptcy, though he had no interest in the order as to costs, his estate being now vested in the trustee.’
This implies that the bankrupt would not have been entitled to appeal against an order which was enforceable only against his estate. This appears clearly from the decision of the House of Lords in Rochfort v. Battersby (1849) 2 H.L. Cas. 388. The bankrupt was entitled to estates in Ireland subject to an annuity in favour of his mother. He had mortgaged the estates to a creditor who brought foreclosure proceedings in which he joined the bankrupt, his assignees and the annuitant. The action raised the question of whether the mortgage had priority over the annuity and the Lord Chancellor of Ireland decided in favour of the annuitant. The bankrupt alone appealed to the House of Lords which dismissed his appeal on the ground that he had no locus standi. Lord Cottenham L.C. said, at p. 406, that the question was whether he had ‘that interest in the subject matter which would entitle [him] to appear here [as a party] questioning the propriety of the decision below.’ The bankrupt did not:-
‘the courts have always considered these acts of Parliament as divesting the insolvent of all title and interest in the property, which would authorise and justify him in entering into any litigation respecting it.’”
43. Hoffmann L.J. pointed out that in that particular case, the bankruptcy had occurred before the foreclosure proceedings were commenced and the House of Lords had said that the bankrupt should never have been joined as a party in the first place but he went on:-
“the reasoning would equally have precluded him from appealing if bankruptcy had supervened after the Irish proceedings had been concluded. As in the case of a trustee’s refusal to bring proceedings as plaintiff, the bankrupt may in such a case apply to the court exercising bankruptcy jurisdiction to direct the trustee to appeal or to allow the bankrupt, on providing suitable security, to use the trustee’s name.”
44. Lest it might be thought that the decision in Heath v. Tang was based solely on elderly authorities, one finds the following at p. 1427 of the judgment of the court:-
“The insolvency law has of course changed a great deal since the time of Lord Eldon and In re Smith (A Bankrupt), Ex parte Braintree District Council [1990] 2 A.C. 215 is authority for taking a fresh look at the construction of the Insolvency Act 1986 in modern conditions. Nevertheless, the principle that the bankrupt is divested of an interest in his property and liability for his debts remains fundamental in the new code. The consequences for the bankrupt’s right to litigate do not seem to us inconvenient or productive of injustice. The bankruptcy court acts as a screen which both prevents the bankrupt’s substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims.”
45. No subsequent English decision appears to have altered this approach so the law in England and Wales appears clear. If Mr. Quinn were in that jurisdiction, he would have no entitlement to appear personally in defence of this third party claim against him.
46. Given the similarity in the statutory provisions being considered by the Court of Appeal in Heath v. Tang and those which obtain in this jurisdiction, I am invited to hold that Irish law on this topic is precisely as the same as English law and that therefore Mr. Quinn has no entitlement to defend the third party proceedings.
Mr. Quinn’s Contentions
47. In truth there is not a great deal in dispute between the parties as to the effect of an adjudication in bankruptcy on an individual. Mr. Quinn accepts that the property of a bankrupt vests in the Assignee. He accepts that the case law has consistently recognised that rights of actions which are personal to a bankrupt e.g. defamation or slander or personal injury, do not vest in the Assignee. He contends that an alleged personal right to defend himself in the third party proceedings does not vest in the Assignee.
48. Over and above that, however, he alleges that he has a constitutional entitlement to defend proceedings of this type. He alleges that as his good name is put to the hazard in these proceedings he has a personal constitutional right to defend it.
49. He says that this right of defence is one which derives not merely from the provisions of the Constitution but is also guaranteed to him under the European Convention on Human Rights and in particular Article 6(1) thereof. He contends that the Assignee’s decision not to contest the proceedings has no relevance. That is because the Assignee only has power to defend proceedings pertaining to the bankrupt’s property. The Assignee has no power over and above that, it is claimed.
50. It is said that the court must construe the provisions of the bankruptcy legislation in a manner which is consistent with Mr. Quinn’s alleged rights of defence derived from the Constitution and the European Convention on Human Rights.
The Nature of the Claim
51. I have already out in short form, the claim which Mr. Quinn faces in these third party proceedings (see paras. 9, 10 and 29). Mr. Quinn contends that the claim must be looked at in greater detail in order to adjudicate upon his alleged right to defend it. He draws particular attention to the following.
52. Paragraph 45 of the third party statement of claim reads:-
“Further and in the alternative and without prejudice to the foregoing if any of the said representations made by the third parties to the first defendant were untrue in any respect (which is denied), the said representations were made fraudulently and well knowing that they were false and untrue or recklessly not caring whether they were true or false and with the specific intention of inducing the first named defendant to make the loans in an aggregate amount of approximately €2.8 billion to the Quinn Group, or, alternatively some of the said loans and/or to continue the funding and support of the Quinn Group and the companies within it.”
53. Paragraph 50 of the statement of claim reads:-
“Further and in the alternative and without prejudice to the foregoing if, which is denied, any of the loan transactions (or any part of them) were tainted by illegality and/or were for an illegal purpose as alleged in paragraphs 103 – 110 of the statement of claim, then the same was due to a conspiracy by the third parties to enter into unlawful loan transactions and/or to effect an illegal purpose and/or to use some of the monies advanced to the Quinn Group of companies for an illegal purpose as pleaded in the aforesaid paragraphs of the statement of claim.”
54. In reply to particular No. 135, Anglo pleads:-
“As is clear from the third party statement of claim, the first defendant pleads conspiracy in two respects…accordingly if which is denied, those loan transactions or any of them were illegal or the security given in connection with the loan transactions is determined to be unenforceable or void, the first defendant will contend that the actions of the third parties constituted a conspiracy to enter into and/or give effect to those illegal transactions and/or a conspiracy to use funds lawfully provided by the first defendant for illegal purposes.
Secondly, the first defendant seeks damages as against the third parties for a conspiracy…nevertheless and without prejudice to the foregoing, as is apparent from the third party statement of claim and in particular paragraphs 36 – 57 thereof, the first defendant contends that if the plaintiffs or any of them succeed in obtaining the relief claimed in respect of the security agreements and in particular for the reasons pleaded at paragraphs 89, 90, 91, 100 and 101 of the third party statement of claim then the third parties were guilty, inter alia, of misrepresentation and/or breach of warranty and/or fraud and/or negligence. Further, the third parties conspired and combined together to commit those misrepresentations and to breach their warranty of authority and to deliberately mislead the first defendant with regard to the matters pleaded at paragraph 41 of the third party statement of claim and to fraudulently obtain loans and/or a continuation of loans or facilities from the first defendant. For the reasons comprehensively set out in the third party statement of claim, in the event that the plaintiffs succeed in their claim as described above, the first named defendant will contend that the third parties thereby caused or contributed to any loss or damage that may be suffered by the first named defendant. In those premises, the concerted and coordinated actions on the third parties constituted a conspiracy to injure and harm the first defendant and/or a conspiracy to cause harm to the first defendant by unlawful means.”
These passages are relied on by Mr. Quinn to demonstrate the serious allegations of dishonesty and conspiracy made against him.
55. Mr. Quinn has delivered a defence to these allegations. He denied them all. He also alleged that Anglo knew the exact and real purpose of the loans which was for the purpose of meeting the margin calls on the contracts for difference positions held in Anglo and that it facilitated acquiesced and/or insisted upon him taking the loans so that the margin calls would be met thus protecting the share price of Anglo.
56. It is suggested by Mr. Quinn that because of the nature of these allegations, the case can be regarded as one of those “personal” types of cases which are not affected by bankruptcy. In support of that contention, reliance is placed on a number of cases. The first of these was Howard v. Crowther [1841] 8 M&W 601. In that case the plaintiff brought a claim for damages against the defendant for the seduction and loss of services of his sister and servant. The defendant pleaded that the plaintiff had become a bankrupt and therefore the cause of action vested in the plaintiffs’ Assignee. The plaintiff argued that he had a right of action for a tort which was purely personal and did not pass to his Assignee. Lord Abinger C.B. in the course of his judgment stated:-
“Nothing is more clear than that a right of action for an injury to the property of the bankrupt will pass to his assignees; but it is otherwise as to an injury to his personal comfort. Assignees of a bankrupt are not to make a profit of a man’s wounded feelings; causes of action, therefore, which are, as in this case, purely personal, do not pass to the assignees, but the right to sue remains with the bankrupt.”
57. This case appears to me to be just another illustration of the type of personal obligation mentioned in Fletcher and dealt with in some detail in Heath v. Tang. It does not appear to me to advance the argument sought to be made by Mr. Quinn.
58. The next case relied upon is Beckham v. Drake [1849] HL 579. The passage relied upon from that case reads:-
“It certainly has been established by a series of authorities ending with the case of Rogers v. Spence in this House that no action can be maintained, either by an executor or by an assignee to recover damages for bodily or mental sufferings or personal inconvenience sustained by the deceased or by the bankrupt; the foundation of which is, perhaps, that it would in many cases be attended with extremely harsh and unjust consequences if the discretion, as to whether a redress for wrongs of this nature should be sought, was to be intrusted to anyone but the very person who has received the injury.”
59. Reliance is also placed upon a further passage from that case in the following terms:-
“This principle (that all rights of action passed to the assignee) is subject to exception. The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely not curing, nor saving from imprisonment by process of law.”
60. This passage contains a useful list of the type of personal claims which are excluded from the purview of the Assignee. But it does not, in my opinion, touch upon the contention which is sought to be made by Mr. Quinn in this case. Further authorities such as Wilson v. United Counties Bank Limited [1920] A.C. 102 and Ex parte Vine [1878] 8 Ch. 364 relied upon by Mr. Quinn do not advance his case any further.
61. The only Irish case relied upon by Mr. Quinn is Siroko v. Murphy [1955] I.R. 77. There the Supreme Court had to consider whether a plaintiff who had become a bankrupt was entitled to continue proceedings which he had instituted. Notice of trial had been served in the action but between then and the hearing, the plaintiff became a bankrupt. The Assignee indicated that he did not wish to continue with the action. When the case came on for hearing in the High Court, the Assignee was not represented. The plaintiff told the court that he was not in a position to proceed and the action was dismissed with costs. The plaintiff appealed. Maguire C.J. stated in the course of his judgment:-
“It is plain upon all the authorities, and, I may add, all the text-book writers, that when the plaintiff became a bankrupt this action, not being for a mere personal wrong, was by act of law assigned to the Assignee in Bankruptcy. The plaintiff thereupon became incapable of conducting it.”
62. All of these cases are to the same effect. They recognise a form of personal right of action that does not vest in the Assignee or trustee. But they do not appear to me to advance Mr. Quinn’s assertion that the claim for indemnity and damages made against him in these third party proceedings are, because of the allegations of misconduct, to be regarded as conferring on him a personal right to defend which does not vest in the Assignee.
63. A New Zealand case called De Alwis v. Kum decided by Courtney J. in the High Court on 24th March, 2010, appears to me to be much more on point insofar as Mr. Quinn’s contention is concerned. In that case, the second defendant, a Mr. Chean and his former wife applied to set aside a judgment entered against him in 2007. The basis for the application was that the plaintiffs mislead the court at the hearing which led to the judgment. The issue which fell for determination was whether either Mr. or Mrs. Chean had standing to bring the application. It was alleged that Mr. Chean did not have standing because he was an undischarged bankrupt whose rights in the proceedings including the right to apply to set aside the judgment vested in the Official Assignee. One of the claims made by Mr. Chean was that the judgment against him contained findings of a personal nature such that the right to set aside the judgment remained vested in him. Courtney J. accepted that there are, of course, some rights of action and some liabilities that are personal to the bankrupt and over which the Official Assignee has no control.
64. Having referred to the judgment of Hoffman L.J. in Heath v. Tang, Courtney J. recounted an argument made by Mr. Chean’s counsel to the effect that the findings made against him were of a quasi criminal nature and affected his personal rights and reputation. Mr. Chean submitted that he had the right to attack a judgment debt for fraud because his right to do so was preserved as a personal right of action under the New Zealand Bill of Rights Act 1990. The judge rejected those propositions and went on to say:-
“Self-evidently, nearly all claims that result in a judgment enforceable against the estate will involve allegations of wrongdoing by the defendant. It would be a most surprising result if the principle articulated in Heath v Tang were undermined merely by the fact that the proceedings in which the judgment debt was obtained included allegations of wrongdoing against the defendant. I would add that, even where the allegations of wrongdoing could otherwise be regarded as defamation, that fact alone would not change the position in this case where the complaint is about findings of the Court, given that statements made in the course of legal proceedings are privileged.”
65. Those observations appear to me to be much more pertinent to the line of argument which Mr. Quinn advances here. They are against the proposition asserted by him.
66. In my view, merely because the allegations against Mr. Quinn in the third party proceedings involve allegations of wrongdoing, does not remove the defence of such a claim from the purview of the Assignee. Accordingly, I am of opinion that this claim for damages against the estate of the bankrupt is not one of those personal claims which do not vest in the Assignee. The defence of such a claim is a matter for the Assignee. This position is not altered because the claim includes allegations of wrongdoing against Mr. Quinn. Insofar as this argument is concerned, therefore, I reject the entitlement of Mr. Quinn to represent himself further in this litigation.
Right of Access to the Court
67. Mr. Quinn contends that the bankruptcy legislation has to be construed in conformity with his constitutional entitlements. He does not seek to impugn the constitutionality of the legislation and the Attorney General has not been joined to these proceedings.
68. Much well known case law on the constitutional right of access to the courts was relied upon by Mr. Quinn in support of the argument that a refusal to allow him to defend the third party claim would wrongly deny him access to the court. There is no dispute between the parties but that there is a constitutional entitlement on the part of persons to have access to the courts. In this regard, I need do no more than cite from the judgment of Keane C.J. in In Re Article 26 in ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 where he said:-
“It would be contrary to the very notion of a state founded on the rule of law, as this State is, and one in which, pursuant to Article 34 justice is administered in courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right of access to the courts to enforce their legal rights. In Murphy v. Greene [1990] 2 I.R. 566 at p. 578 Griffin J. observed ‘it is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the courts. Stated in its broadest terms, this is a right to initiate litigation in the courts …’.”
69. Mr. Quinn argues correctly that the 1988 Act carries with it a presumption of constitutional validity. He says that as a corollary it may not be interpreted or applied in a way that infringes rights derived from or under the Constitution. He cites in support of that argument, the well known passage from the judgment of Walsh J. in East Donegal Cooperative v. Attorney General [1970] I.R. 317, where that judge said:-
“At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
70. It is argued that Mr. Quinn has, by virtue of Article 40.3.1 and Article 40.3.2, a personal right to defend himself in these proceedings.
71. In support of this contention, reliance was placed on the decision of the Supreme Court in In Re Haughey [1971] 1 I.R. 217 and in particular the passage from O Dálaigh C.J’s judgment where he accepted the proposition that there were four protections which must be afforded to a person whose good name is under attack at an inquiry. Those entitlements are:-
(a) to be furnished with a copy of the evidence which reflects on his good name;
(b) an entitlement to cross examine, by counsel, an accuser;
(c) an entitlement to give rebutting evidence; and
(d) a right to address the tribunal, by counsel if he wishes, in his own defence.
O’Dalaigh C.J. went on to say:-
“The provisions of Article 38, s. 1, of the Constitution apply only to trials of criminal charges in accordance with Article 38; but in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”
72. Reliance was also placed upon my own judgment in In Re Commission to Inquire into Child Abuse [2002] 3 I.R. 459, where I had to deal with the question of the right to legal representation. I pointed out that the right to legal representation before a Tribunal is a constitutional one and does not depend on statute or any procedural rules which may be generated by the Tribunal. Rather, it derives from the constitutional guarantee in Article 40.3 concerning the citizen’s right to his good name.
73. While Mr. Quinn accepts that the right of access to the court is not an absolute one and may be restricted in specific circumstances, he nonetheless contends that his entitlement to assert his right to a good name means that the 1988 Act must be interpreted in such a way as to permit him to defend these third party proceedings.
74. Many of the general principles which were relied upon on this topic of Mr. Quinn’s constitutional rights were not disputed by Anglo. It accepts that he enjoys a right to his good name and that in many cases the defence of that would entitle a person to have access to the courts to vindicate or defend it. However, it argued that that right is not one which is engaged at all in these proceedings.
75. First, it is argued that the constitutional entitlement to protection of a good name is engaged only where a court or tribunal will be required to make a finding that adversely affects such good name or reputation. For reasons which I will develop in a moment, it is said that no such engagement will take place here. Second, it is said that when in litigation something is said which is adverse to one’s character or may reflect poorly upon one, it does not mean that the constitutional entitlements identified by Mr. Quinn are triggered. Third, it is submitted that it must be recognised that Mr. Quinn is a bankrupt and therefore is not in the same position as any other party to litigation. Bankruptcy, whilst granting some very considerable advantages to a bankrupt, also imposes disabilities. It is argued that significant disabilities are created for creditors or claimants against a bankrupt. The bankruptcy code consists of checks and balances. One of the consequences for a bankrupt is that there is a very limited right of defence of proceedings. I will consider these propositions in turn.
Good Name
76. The cases which have been relied upon by Mr. Quinn concerning the protection of his good name and reputation are all ones which have to do with tribunals of inquiry. Whether it is Re Haughey [1971] I.R. 217 or Maguire v. Ardagh [2002] 1 IR 385 or In Re Commission to Inquire into Child Abuse [2002] 3 I.R. 459, all those cases were concerned with the engagement of rights to good name in an inquiry giving rise to a finding or adjudication. In the present case, Anglo argues, correctly in my view, that if Mr. Quinn is not permitted to appear to defend the third party proceedings, there will be no finding or adjudication touching upon his reputation or good name. What will happen will be that Anglo will apply for judgment against him in the normal way in which such applications are made in respect of undefended claims. If successful, judgment in default of a defence being offered will be entered. The court will not be concerned with making findings or adjudications. A judgment will be obtained but no findings dealing with the allegations of wrong doing will be made. A judgment will be granted by operation of law without the court embarking on a hearing much less making findings on the allegations of dishonesty or conspiracy. That is a real distinction between what will happen in this case and what happens in tribunals of inquiry.
77. Anglo contends that a system of adversarial litigation cannot accommodate a proposition whereby anyone whose conduct comes under consideration or scrutiny in the course of proceedings acquires rights with a view to protecting their good name or reputation. Every witness, it is said, who goes into the witness box is at risk that their testimony will not be believed and that adverse findings may be made against them. But it is not the law that every such person acquires a right to defend their good name or reputation. In support of this argument, reliance is placed upon De Alwis v. Kum (supra) and on a number of Irish cases.
78. The first of these Irish cases is Barlow v. Fanning [2002] 2 IR 593. In that case, three members of the staff in the Economics Department of University College Cork, sued the professor and head of that department and the university. The claim was for damages, negligence and breach of contract. Serious allegations were made against the professor concerning the way in which he conducted the business of the department. They included the use of abusive and intimidating language to the plaintiffs, discrimination against them, isolation of them and the frustration of their chances of promotions. The plaintiffs claimed that the university was vicariously responsible for the alleged acts or omissions on the part of the professor.
79. Subsequent to the commencement of the proceedings, the plaintiff discontinued the action against the professor. The professor formed the view that the plaintiffs had adopted this procedure in order to prevent him from defending his reputation and that it was a device designed to facilitate a settlement between the plaintiffs and the university on which he would not be consulted. He applied unsuccessfully to be rejoined in the action before the Master whose decision was reversed by Johnson J. On appeal to the Supreme Court, Johnson J. was reserved. The Supreme Court took the view that there were no exceptional circumstances to permit a defendant to be joined against a plaintiff’s wishes such as were present in Fincriz v. Ansbacker & Company Limited (Unreported, High Court, 20th April, 1987). In the course of his judgment, Keane C.J. said this:-
“It is no doubt the case that, if the plaintiffs succeed in the present action, the good name and reputation of the first defendant may be adversely affected, since, for the most part, the establishment of the plaintiffs’ case against the second defendant necessitates the proof by them of damaging allegations against the first defendant. However, that can often be the case in litigation where a party elects to sue one defendant in reliance on his vicarious liability for the wrongdoing of another who is not sued. Thus, the owner of a vehicle is frequently sued as being vicariously responsible for the negligence of a person driving the vehicle with his consent. If the submissions advanced on behalf of the first defendant were well founded, it would be necessary in every such case for the High Court on the application of the driver, to join him as a defendant in the proceedings because his good name and reputation might be adversely effected by what was said during the course of the case or, indeed by the findings of the trial judge. I am satisfied that O. 15, r. 13 cannot be so construed and that a person in the position of the first defendant cannot be regarded as a party who ought to have been joined or whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.”
80. A similar situation arose in the case of Yap Wai v. Children’s University Hospital Temple Street Limited [2006] 4 IR 298. In that a case a consultant paediatrician brought proceedings against her employer, the hospital. The clinical director of the National Centre for Inherited Metabolic Disorders sought to be joined as a notice party to the proceedings on the basis of having an interest in them. Her application was refused by Clarke J. applying the decision in Barlow v. Fanning. He said:-
“But it seems to me that it is not possible to distinguish in any material way the facts of this case from the facts in Barlow v. Fanning [2002] 2 IR 593, and while I have much sympathy with the position of the clinical director in that it does seem on reading the affidavits that her actions and position will be of no little significance in the course of the hearing and are likely to be ventilated to some significant extent, nonetheless it seems me that the Supreme Court has given a clear and definitive ruling to the effect that any such considerations are outweighed by the obligation on the courts to keep private proceedings down to the parties whom the plaintiff chooses, and in those circumstances I would not propose acceding to the application to join the clinical director.”
81. Whilst those two cases are, of course, concerned with the joinder of parties to civil litigation against the will of the plaintiff, they do in my view provide support for Anglo’s case against the proposition that Mr. Quinn’s alleged constitutional entitlements are automatically triggered in this litigation.
82. It is possible in litigation to have findings made against somebody who is not a party to them without an entitlement of the type for which Mr. Quinn contends. In the current litigation, there may well be findings against Mr. Quinn in the main proceedings between the family and Anglo or indeed in the third party proceedings against the other third parties but he has no entitlement to be heard in respect of those. In the third party proceedings against him, if he is not allow to defend, judgment will be obtained against him by operation of law and the allegations which have been made and indeed denied by him will remain undecided.
83. Finally, on this aspect of the matter it has to be borne in mind that bankruptcy provides considerable advantages for a bankrupt. But protection from creditors comes at a cost. One of those costs is that when a claim of a non-personal nature is made against the bankrupt which may result in a judgment against his estate, the decision on whether or not to defend such a claim resides in the Assignee. Such a well established construction of the bankruptcy legislation does not, in my view, do violence to Mr. Quinn’s rights.
84. I am satisfied that a refusal to allow Mr. Quinn to defend these third party proceedings does not infringe his constitutional rights.
European Convention
85. Mr. Quinn complains that if he is not allowed to defend these third party proceedings, his rights under Article 6(1) of the European Convention on Human Rights will be infringed.
86. That Article reads:-
“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
87. A number of cases were relied upon by Mr. Quinn in support of his argument.
88. The first of them was Golder v. United Kingdom [1975] 1 EHRR 524 concerned the entitlement of a convicted prisoner who was refused permission by the Home Secretary to write to a solicitor with a view to instituting civil proceedings for libel against a prison officer.
89. The second was the case of Holy Monasteries v. Greece [1994] 20 EHRR 1 which concerned a limitation on the right to bring proceedings to particular interested parties to the exclusion of others. That was held to be a deprivation of the right of access guaranteed by Article 6.
90. Neither of those cases dealt with the position of a bankrupt. The third case relied upon by Mr. Quinn did so. It is Luordo v. Italy [2003] ECHR 372.
91. In that case the applicant had a bankruptcy order made against him. One of the effects of that order was that he was prevented from taking legal proceedings to defend his interests. In that regard he alleged a violation of Article 6(1) of the Convention. Whilst Signor Luordo wished to bring a case as opposed to defend one, the principle is the same.
92. The European Court of Human Rights in the course of its judgment on the Article 6 claim said this:-
“81. The applicant said that the loss, as a result of bankruptcy, of the capacity to take legal proceedings was highly damaging to the bankrupt. At the same time, there was a conflict of interest between the trustee in bankruptcy, who acted in lieu of the bankrupt and the bankrupt.
82. The Government contended that the purpose of preventing bankrupts from taking legal proceedings was to protect a third party right, namely ‘the interests of the bankrupt’s creditors’. Furthermore the restriction applied solely to issues concerning pecuniary rights and, accordingly was within the State’s margin of appreciation. The Government added that the bankrupt was in any event represented in court by the trustee in bankruptcy. Lastly, the applicant had not sustained any loss, as he had instituted various court proceedings while the bankruptcy proceedings were pending (for instance, an application on 5 April 1996 for a referral to the Constitutional Court and an application on 17 April 1996 for a stay of execution of the order for sale).”
93. The court then set forth its assessment. It said:-
“83. The Court, considers, firstly, that the restriction on the applicant’s ability to take legal proceedings must be considered from the perspective of the right of access to a court. It reiterates that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the ‘right to a court’, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. United Kingdom, judgment of 21 February 1975). This right extends only to disputes (‘contestation’) over ‘civil rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law (see, inter alia, James & Ors v. United Kingdom, judgment of 21 February, 1986 and Powell & Rayner v. United Kingdom, judgment of 21 February, 1990.
84. The court notes that the restrictions on the applicant’s ability to take legal proceedings concerned disputes over issues of a pecuniary nature. The civil limb of Article 6 is therefore applicable.
85. Furthermore, the ‘right to a court’ is not absolute. It is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Ashingdane v. United Kingdom, judgment of 28 May 1985). However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6(1) if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim to be achieved (see Levages Prestations Services France, judgment of 23 October 1996).
86. The court considers that the purpose of the restriction on the applicant’s capacity to make legal proceedings is to assign the role of representing the bankrupt in court in respect of issues arising over the bankrupt’s pecuniary rights to the trustee in bankruptcy as, once the bankruptcy order has been lodged, he is responsible for the administration of the bankrupt’s assets. Indeed, it is self evident in the court’s view that disputes over such matters may have major repercussions on the assets and liabilities of the bankrupt estate. The court consequently finds that the restriction is intended to protect the rights and interests of others, namely those of the bankrupt’s creditors. The court must go on to examine whether the consequences suffered by the applicant were proportionate to the legitimate aim pursued.
87. The restriction on the applicant’s right of access to a court is not in itself open to criticism. However, the risk with such a system is that it may unreasonably limit the right of access to a court, particularly if the proceedings are protracted, as they were in the instant case which they lasted fourteen years and eight months. In that connection referring to its findings with respect to Article 1 of protocol No. 1, the Court considers that, contrary to what the Government have affirmed, the delays in the proceedings were not attributable to the failure of the attempts to sell the applicant’s house at auction or the applicant’s conduct.
Consequently, it finds that there was no justification for restricting the applicant’s right of access to a court for the full duration of the proceedings, since, while in principle, a restriction on the right to take legal proceedings is necessary to achieve the aim pursued, the necessity will diminish with the passage of time. In the Court’s view, the length of the proceedings thus upset the balance that had to be struck between the general interest in securing the payment of the bankrupt’s creditors and the applicant’s personal interest in having access to a court. The inference with the applicant’s right was accordingly disproportionate to the aim pursued.”
94. The court concluded that there had been an infringement of the right of access to a court as guaranteed by Article 6(1) of the Convention. But it did so on the very limited basis set out in the passages cited above.
95. The court held that a restriction on the applicant’s right to access was not in itself open to criticism. The restriction was intended to protect the rights and interests of the bankrupt’s creditors. It went on to examine whether the consequences suffered by the applicant were proportionate to that legitimate aim. A restriction on the right to take legal proceedings was necessary to achieve that aim. The court held that necessity diminished in time and, given the length of time that Signor Luordo was to be deprived of his entitlement, the restriction was disproportionate.
96. The provisions of ss. 44 and 61 of the 1988 Act and in particular s. 61(3)(d) have as their object, the protection and rights and interests of Mr. Quinn’s creditors. As the European Court of Human Rights has held, the restriction on Mr. Quinn’s right of access to a court is not in itself open to criticism. The proceedings in Signor Luordo’s case lasted fourteen years and eight months. It was because of the length of time involved that the European Court of Human Rights found in favour of the applicant.
97. I do not accept that there is any comparison to be made between the facts in the Luogo case and the position of Mr. Quinn. The decision in Luogo does not have the wide ranging implications which are contended for by Mr. Quinn. It is narrow and confined and the facts are not at all comparable to his case.
98. Mr. Quinn has not, in my view, demonstrated that his rights under Article 6(1) of the Convention are infringed or likely to be infringed by answering the question posed at the outset of this judgment in the negative.
Disposal
99. Mr. Quinn, being a bankrupt, does not have a personal entitlement to defend these third party proceedings. The decision on whether to defend the proceedings or not is vested in the Assignee. He has declined to defend them and in my view was entitled to so decide.
100. I answer the question posed at para. 1 of this judgment in the negative.
MJBCH Limited & Companies Acts: Murphy
[2013] IEHC 256
Neutral Citation Number: [2013] IEHC 256
THE HIGH COURT
[2012 No. 277 COS]
IN THE MATTER OF MJBCH LIMITED (IN LIQUIDATION)
AND IN THE MATTER OF SECTION 222 OF THE COMPANIES ACT 1963
AND IN THE MATTER OF AN APPLICATION BY
MARY MURPHY
APPLICANT
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 15th day of April, 2013
1. The applicant, Ms. Mary Murphy, suffered an accident on 20th February, 2010, at the D4 Hotels Complex, Ballsbridge, Dublin 4. Arising out of investigations made on her behalf by her solicitors, they have been informed that MJBCH Ltd. (“the Company”) was, at the material time, the occupier of the premises on which the accident occurred. They have further been informed that the Company had taken out a policy of insurance with a named insurance company.
2. The applicant applied to the Personal Injuries Assessment Board and by an authorisation dated 3rd June, 2011, was granted authorisation to commence proceedings against the Company. On 10th August, 2012, plenary proceedings were instituted under High Court Record Number 2012 No. 7988 P between Mary Murphy, plaintiff and JDPHC, MJBCH Ltd., Mountbrook Developments Ltd. and BCPHC, defendants. At the time of institution of the plenary proceedings, the applicant and her solicitors were unaware that on 25th June, 2012, an order had been made by the High Court for the winding up of the Company by the Court and Mr. Declan Taite appointed Official Liquidator thereof.
3. The plenary proceedings were served on the Company in January, 2013. In response, the applicant’s solicitor received a letter from the Official Liquidator advising that the Company had been wound up and that the Official Liquidator did not intend to defend the proceedings. Thereafter, the solicitor for the applicant wrote to the Official Liquidator of an intention to make an application pursuant to s. 222 of the Companies Act 1963, seeking retrospective leave of the Court to the commencement of the proceedings. In that letter, the solicitors refer to the English decisions of In Re Saunders (A Bankrupt) [1997] Ch. 60, and Re Colliers International UK plc. [2012] EWHC 2942 (Ch) as authority for the proposition that this Court could retrospectively make an order pursuant to s. 222 granting leave to commence proceedings. The solicitors also made clear that the applicant was anxious to proceed against the Company in the plenary proceedings in order to protect her position in respect of s. 62 of the Civil Liability Act 1961, having regard to the position taken by other parties in the proceedings to s. 35(1)(i) of the Act of 1961.
4. The present application was served on the Official Liquidator. The Court was informed that in advance of the application, through his solicitors, the Official Liquidator had informed the solicitors for the applicant that he was taking a neutral stance on the application and did not propose incurring the expense of appearing on this application.
5. The primary issue on this application is whether or not the Court has jurisdiction pursuant to s. 222 to make an order granting leave for the commencement of proceedings which has retrospective effect. Put another way, the question is whether or not the Court has jurisdiction to make an order, the effect of which is to validate proceedings commenced after the making of a winding up order but without the prior leave of the Court. If the Court does have jurisdiction, there is the further issue as to whether it should grant the order sought.
The Law
6. Section 222 of the Companies Act 1963 provides:
“When a winding-up order had been made or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.”
7. Applications pursuant to s. 222 are brought as a matter of course in the Examiner’s Court motion list. In recent years, it has been the practice to reject applications made in respect of proceedings commenced after the making of a winding up order and prior to an application under section 222. This was done following the approach of Rattee J. in the English High Court to s. 130(2) of the Insolvency Act 1986, which is expressed in identical terms to s. 222, in Re National Employers Mutual General Insurance Association Ltd. (In Liquidation) [1995] 1 B.C.L.C. 232. Until the present application, no counsel or solicitor has sought to challenge the correctness of this approach as the proper construction of s. 222 of the Act of 1963.
8. Counsel for the applicant does so in this application relying, in particular, on the reasoning of and authorities referred to in two decisions also of the English High Court: Re Saunders (A Bankrupt) [1997] Ch. 60, and Re Colliers International UK plc. (In Administration) & Ors. [2012] EWHC 2942 (Ch), decided subsequent to Re National Employers Mutual General Insurance Association Ltd. Counsel, in making the application, informed the Court that he was not aware of any contrary authorities in England and Wales (other than those referred to in these two judgments) and had been unable to find any written Irish judgment on s. 222 of the Act of 1963. The carefully reasoned judgments given by Lindsay J. in Re Saunders and David Richards J. in Re Colliers International UK plc. appear to me persuasive and necessitate a reconsideration of the former practice of following the approach of Rattee J. in Re National Employers Mutual General Insurance Association Ltd. Furthermore, on a full consideration of the issues, there is the additional requirement in Ireland that s. 222 of the Act of 1963 be given a construction consistent with the Constitution, and in particular, the right of access to the courts guaranteed by Article 40.3.
9. The issue is whether, on a proper construction of s. 222, a proceeding commenced against a company which has already been the subject of a winding up order without leave of the court, is a nullity, or whether such a proceeding is merely an irregularity and s. 222 gives the Court jurisdiction to consider retrospectively making an order granting leave for the commencement of the proceedings which has the effect of validating the proceedings already commenced.
10. In Re National Employers Mutual General Insurance Association Ltd., Rattee J. followed an earlier decision of Milmo J. in Wilson v. Banner Scaffolding Ltd. (1982) Times, 22 June, in which Milmo J. decided that s. 231 of the Companies Act 1948 (the predecessor of s. 130(2) of the 1986 Insolvency Act) meant that proceedings commenced without leave were a nullity and could not be validated by a retrospective leave from the Court. Milmo J. is reported as determining:
“. . . the writ as originally issued with the name of the second defendants upon it was a nullity as far as the second defendants were concerned. The prohibition against issue without leave of the court imposed by s. 231 of the Companies Act 1948 was absolute and unqualified.”
11. Rattee J. observes:
“As Milmo J. in Wilson v. Banner Scaffolding Ltd. (1982) Times, 22 June pointed out, that provision [i.e. s. 231 of the Act of 1948] was intended by the legislature to protect the interests of the creditors of a company in liquidation by preventing the company being subject to actions once it had gone into liquidation without the court first considering whether such an action ought to be allowed.”
12. He subsequently concluded that Milmo J. was correct in his construction of s. 231 of the Act of 1948, and he saw no reason to reach a different conclusion in relation to the indistinguishable provisions of s. 130(2) of the Insolvency Act 1986.
13. This decision was reconsidered in England in 1996 by Lindsay J. in In Re Saunders (A Bankrupt) [1997] Ch. 60 in a lengthy judgment which followed three days of inter partes submissions. The section under consideration was s. 285(3) of the Insolvency Act 1986, which applies to bankruptcy and insofar as relevant provides:
“After the making of a bankruptcy order, no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy shall . . . commence any action or other legal proceeding against the bankrupt except with the leave of the court and on such terms as the court may impose . . .”
14. Whilst the section at issue in Saunders related to bankruptcy and not the winding up of companies, there was no distinction made in argument between the relevant sections. Rather, it was submitted to the Court that a significant number of prior relevant English decisions and Commonwealth decisions had not been opened to either Milmo J. or Rattee J. in their decisions already referred to herein and that their conclusions were wrong in principle, insofar as they determined that the commencement of proceedings without leave in insolvency meant the proceedings were a nullity rather than irregular. Lindsay J. having considered in some detail the earlier English decisions and Commonwealth decisions, at p. 82, summarised the position in the following terms:
“There was a practice in England dating back at least to Re Wanzer Ltd. [1891] 1 Ch. 305, a practice recognised to be such at least as early as R v Lord Mayor of London, ex p Boaler [1893] 2 Q.B. 146, that proceedings in insolvency begun without the stipulated leave should not be regarded as irretrievably null but rather as existing and capable of redemption by the late giving of leave. Judges and counsel of great experience in England, from Re Wanzer Ltd in 1891 to Re Hutton (a bankrupt), [1969] 2 Ch. 201, treated retrospective leave in insolvency as a thing capable of being granted and as requiring no particular discussion. As the Court of Appeal emphasised in Rendall v Blair 45 Ch. D. 139, the legislature knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of the proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory- the word used in Rendall v Blair, and, in Australia, used in Re Testro Bros Consolidated Ltd [1965] V.R. 18 and Re Horsham Kyosan Engineering Co Ltd [1972] V.R. 403. To the same effect is the view taken in Canada (Wheat Board) v Krupski 26 C.B.R. (3d) 293 and elsewhere that a want of leave is only an irregularity.”
Lindsay J. recognised considerable force in a conclusion that the natural construction of the words of s. 130(2) of the Insolvency Act 1986, was in accordance with the conclusions of Milmo J. and Rattee J. Nevertheless, having regard to the decisions to which he referred and the practical inconveniences and injustices described, he decided that the words were capable of more than one legitimate meaning and that he should give effect to the statutory purpose by concluding that the section gave him jurisdiction to grant leave, notwithstanding that the proceedings had already commenced.
15. Notwithstanding this decision in 1996, it appears from the subsequent decision in Re Colliers International UK plc. [2012] EWHC 2942 (Ch) given on 24th October, 2012, that there continued to be differing views in the English High Court. In that judgment David Richards J. referred to a decision on the bankruptcy side in Re Taylor [2006] EWHC 3029 (Ch) [2007] Ch. 150, in which HH Judge Kershaw Q.C. (sitting as a High Court judge), having reviewed all the authorities and submissions considered in Saunders, concluded that the decision was wrong and rejected an unopposed application for retrospective permission to commence an action against a defendant who had been adjudicated bankrupt. Other High Court decisions are also referred to in the judgment, to the opposite effect of the position in Saunders.
16. None of the English decisions or Commonwealth decisions are binding on me. Insofar as they consider the proper statutory construction, having regard to the purposes of Acts similar to the Companies Act 1963, they are of assistance. In this respect, the judgment of David Richards J. in Re Colliers International UK plc. is of particular assistance. In addressing the question as to whether the proper construction of the various sections required the conclusion that proceedings brought without the required permission under the provisions of the UK Insolvency Act are a nullity, he stated at para. 32:
“In addition to the consequences of holding that proceedings are a nullity, it is clearly relevant to have regard to the purpose of the provisions in the context of insolvency. It is important to note that the requirement for permission for the commencement of proceedings applies to insolvency proceedings under the control of the court: bankruptcy, winding-up by the court and administration. It does not apply to a company in creditors’ voluntary winding-up. This suggests that the real purpose of these provisions is not so much the protection of creditors as the purpose identified by Black LJ in Boyd v Lee Guinness Limited [1963] N.I. 149.
‘This section is one of a series of provisions designed to ensure that when a winding-up order has been made by the court the whole of the task of supervising the collection and distribution of the company’s assets should be committed to the winding-up court and, accordingly, that all proceedings having any bearing upon the winding-up of the company should remain under the supervision and control of that court.’
Given that purpose, it is hard to see why the court should not be permitted to grant retrospective permission if in the circumstances it is appropriate to do so.”
Having regard, inter alia, to such statutory purpose, David Richards J. reached the conclusion that Re Saunders was correctly decided and that retrospective permission could be given for the commencement of proceedings under the relevant sections of the Insolvency Act 1986, including s. 130(2), which is stated in identical terms to s. 222 of the Act of 1963.
17. In this jurisdiction, s. 222 of the Act of 1963 only applies to a winding up by the Court and the Companies Acts do not impose a leave requirement on the commencement of proceedings against a company in voluntary liquidation, including a creditor’s voluntary liquidation. It appears to me that the purpose of s. 222 is not simply the protection of creditors, but rather, primarily the purpose identified by Black L.J. in the Court of Appeal in Northern Ireland in Boyd v. Lee Guinness Ltd., of placing all proceedings in relation to the company being wound up by the court under the supervision of the court.
18. In an Irish context, s. 222 of the Act of 1963 must, of course, be construed in accordance with the ordinary meaning of the words used so as to give effect to the purpose intended by the Oireachtas. Such purpose is presumed to be one which is consistent with the Constitution.
19. The restriction imposed by s. 222 of the Act of 1963 on the commencement of proceedings against a company following the making of a winding up order is a restriction on a potential plaintiff’s constitutional right of access to the courts guaranteed by Article 40.3 and deriving from Article 34.3.1 (McCauley v. Minister for Posts & Telegraphs [1966] I.R. 345). The requirement for leave as a restriction on the general constitutional right of access to the courts should be strictly construed (Murphy v. Greene [1990] 2 I.R. 566).
20. In my judgment, having regard to the purpose of s. 222 as set out above and the above constitutional principles, in the absence of express words which provide that the commencement of proceedings without leave of the court in breach of s. 222 render proceedings a nullity or which preclude the court from granting leave for commencement after the event s. 222 should not be so construed. Whilst s. 222, by its express words provides “no action or proceeding shall be proceeded with or commenced against the company except by leave of the court”, it does not provide for the consequences of the commencement of an action without leave of the court. Further, while the words “except by leave of the court” are open to the construction that leave should be obtained prior to commencement, it does not appear to me that, having regard to the statutory purpose and the necessity to construe the restriction on access to the courts strictly, that these words should be construed as precluding the court granting leave for the commencement of the action after the event. A broader construction of the time at which leave may be sought is in accordance with the statutory purpose of controlling proceedings in a court ordered winding up as the entitlement to pursue the action is still under the control of the court. This construction also avoids the potential adverse consequences of a restriction on access to the courts unnecessary to the statutory purpose of s.222, such as failing to commence within a limitation period or incurring the unnecessary expenses of two sets of proceedings. If s. 222 is construed as not giving the court jurisdiction to make an order granting leave after commencement, it inevitably creates a situation which requires at a minimum discontinuance of the proceedings and, if leave is then subsequently granted, recommencement and service of identical proceedings, and if a limitation period has expired there would be further potentially severe adverse consequences for a plaintiff.
21. Accordingly, I have come to the conclusion that the Court does have jurisdiction pursuant to s. 222 of the Act of 1963, to consider granting leave for proceedings already commenced and that if such leave is granted, the order will have the effect of retrospectively authorising the commencement and authorising the continuation of the proceedings for the purposes of s. 222 of the Act of 1963.
22. Notwithstanding this construction, in the normal course, leave should be sought prior to the commencement of the proceedings. However, where this has not been done, it follows the court retains a jurisdiction to consider, retrospectively, the granting of leave. In deciding any such application, the court should take the same approach as it would have taken had the application been made prior to the commencement of proceedings. A plaintiff who fails to comply with the statutory requirement of s. 222 should not gain any advantage by not having obtained leave at the appropriate time.
23. On the facts herein, I have concluded that I should exercise discretion in favour of now granting leave pursuant to s.222 of the Act of 1963. The applicant would have been entitled to such an order if the application had been made prior to the commencement of the plenary proceedings. The applicant contends that she suffered an injury in premises allegedly occupied by the Company. Whilst the Official Liquidator has indicated that there are no funds available to meet any claim, the applicant envisages that she may be able to avail of s. 62 of the Civil Liability Act 1961, and also having regard to her claim against other defendants, she seeks to avoid any prejudice by reason of s. 35(1)(i) of the Act of 1961.There is no prejudice asserted to the winding-up of the Company in now granting leave.
Relief
24. There will be an order pursuant to s. 222 of the Companies Act 1963 granting the applicant leave retrospectively for the commencement of the plenary proceedings referred to in paragraph one of the notice of motion.
Colmey and Ors v Pinewood Developments Ltd
[1995] 1 ILRM 331
Carroll J
In her action Bridget Colmey seeks a declaration to the effect that the ejectment proceedings served on her on 8 August 1994 by the defendant are offensive to the provisions of the Constitution, in particular Articles 40.3.1°, 40.3.2° and 40.5.
Article 40.3.1° of the Constitution provides:
The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
Article 40.3.2° provides:
The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
Article 40.5 provides:
The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
In this application the plaintiff seeks an interlocutory injunction to restrain the defendant from doing anything in pursuance of the notice to quit or of the ejectment proceedings.
The plaintiff is 84 years of age and has resided in a flat in the defendant’s building at Temple Buildings, Upper Dominick Street, Dublin, for approximately 19 years which she holds as a weekly tenant at £12.50p per week. The defendant company is not the original landlord. It acquired the property in 1989 as a commercial investment. A notice to quit was served on 4th May 1994 purporting to determine the tenancy on 4 June 1994. Ejectment proceedings in the District Court were served on 8 August 1994 and they have been adjourned pending this application.
Mrs Colmey claims that successful proceedings for ejectment are calculated to entail very serious consequences for her physical and mental health, with the likelihood of being fatal. Annexed to the statement of claim is a report from Mrs Colmey’s general practitioner in which there is detailed the plaintiff’s health problems. It lists heart problems, fibrillations, loss of weight and hypertension. The GP concludes her report by saying that she feels it would be life-threatening if Mrs Colmey is ejected from her flat.
As far as the defendant is concerned, its investment to date is £650,000. If the injunction is continued the defendant will sustain loss and damage and it could undermine its solvency.
Mr Mackey SC (for the plaintiff) claims that because her health is affected by the ejectment proceedings then the proceedings are contrary to the Constitution. He says that the defendant being an artificial person has no constitutional rights and that the plaintiff’s constitutional rights to health and life and her property rights take precedence over the defendant’s right to obtain an order for possession. Mr Mackey says that he is not attacking the validity of any statutory provision, merely the operation of the law on ejectment which in this case infringes the plaintiff’s constitutional rights. He claims that the plaintiff has a property right which subsists notwithstanding any purported notice to quit. Mr Mackey cited McMahon v. Leahy [1984] IR 525 at p. 541; [1985] ILRM 422 at p. 436 as follows:
When a statute authorises the making of a particular order in stated circumstances, proof that such circumstances exist will normally lead to the making of the authorised order. But where — as in the case here — a post-Constitution statute authorises the making of an order in stated circumstances, the legislative intent must be held to comprehend that the authorised order will not be made, even though the stated circumstances are shown to exist, if it is shown that the order would necessarily infringe a constitutional right of the party against whom it would operate. The fact that parliament is debarred by Article 15.4.1° of the Constitution from enacting ‘any law which is in any respect repugnant to this Constitution or any provision thereof’ carries with it not only the normal presumption that laws enacted by the national parliament are not repugnant to the Constitution but also the presumption that the provisions of such laws will not be administered or applied in a way that will infringe constitutional rights. The presumption of constitutionality extends to both the substance and the operation of a statute: it is a presumption that admits of rebuttal only by a contrary intention appearing in the terms of the statute itself.
Mr Mackey concludes from that that since the powers conferred by statute must be exercised in a constitutional manner, Mrs Colmey’s health and life cannot be jeopardised by proceedings to give effect to the notice to quit.
Mr Finnegan SC (for the defendant) submits that what the plaintiff proposes is an injunction to restrain the District Court from exercising its jurisdiction conferred by a post-1937 statute (the Courts (Supplemental Provisions) Act 1961). He too cited McMahon v. Leahy [1984] IR 525 at p. 541. His interpretation of the same passage from the report is that it must be assumed that the district judge will do justice in hearing any ejectment proceedings, will listen to any application for a stay and will, if necessary, seek information as to the availability of alternative accommodation and so on. Mr Finnegan says that the plaintiff seeks to take away from the district judge his duty to do justice.
Mr Finnegan cited State (Llewellyn) v. Ua Donnchadha [1973] IR 151 where the Supreme Court considered whether there should be an order of prohibition to prevent a prosecution under a particular subsection of a statute where there was in being a civil action in which the constitutionality of the subsection was the main issue. The High Court upheld the validity of the subsection and this was appealed to the Supreme Court. The district justice refused to adjourn the matter pending the outcome of the appeal. The Supreme Court held that he was acting within jurisdiction. At p. 157 of the report Henchy J said:
If the appellant’s argument is correct, not only this district justice but every district justice in the State must adjourn prosecutions of this kind until the Supreme Court finally rules on the constitutional point. In other words, all that is necessary to bring prosecutions in the District Court under a particular statutory provision to a halt is for somebody to impugn the constitutional validity of the statutory provision in the High Court. Even if the High Court ruled that such a claim could not be sustained it would follow that, if an appeal to the Supreme Court was lodged, the District Court would be divested of jurisdiction to hear and determine any such prosecution until the appeal was decided. This submission in my judgment, is untenable. In the first place, a statutory provision enacted by the Oireachtas under the Constitution is entitled to a presumption that it enjoys constitutional validity, unless a violation of the Constitution is patent on its face. This means that the district justice is not entitled to act on the presumption that, if the constitutionality of the provision is questioned in the High Court, such challenge will succeed either in the High Court or on appeal in the Supreme Court. On the contrary, he must act on the basis that the provision will be ruled to be constitutional.
This case gives rise to a somewhat similar position. All that would be necessary in any ejectment proceeding would be for a tenant to say that his health or life would be affected, apply for an injunction and postpone for perhaps two or three years a final determination on his claim. If it could be done in ejectment proceedings, the same claim could be made in proceedings for debt. The possibilities are endless. Mr Finnegan urged that the court should not assume that the jurisdiction conferred on the district judge would be exercised unconstitutionally.
In deciding whether an injunction should issue, the court should first determine whether there is a fair issue to be tried. Mr Finnegan says that the plaintiff falls at this first fence because the case is so weak. But it is not for this Court to hold that the plaintiff would probably not succeed. Once the claim is not frivolous or vexatious (which is not alleged here), the plaintiff is entitled to have her claim, which is completely novel, decided in a full action. Since the claim concerns the right to possession of property, Mr Finnegan does not claim that damages are an adequate remedy in lieu of an injunction; so the last factor is whether the balance of convenience lies in granting or not granting an injunction.
As I see it, an injunction, which is a discretionary remedy, should not be granted in this case. The District Court should not be injuncted from exercising its jurisdiction conferred by statute. This Court must assume that the district judge will administer justice in accordance with the law. The balance of convenience lies in preserving free access to the District Court. In the exercise of my discretion I refuse the injunction sought.
In the second case (Gaynor v. Pinewood Developments Ltd) all the plaintiffs claim a property right under the Constitution which entitles each of them to remain in undisturbed possession as long as each observes the conditions of the contract with the landlord. This is a novel form of property right which sets at nought the right of a landlord to terminate a letting in accordance with the terms and subject to any statutory restrictions.
All the plaintiffs in this case, whose individual circumstances differ, claim to suffer great distress, anxiety and acute depression because of the uncertainty occasioned by the ejectment proceedings. The plenary summons issued on their behalf claims a declaration that the ejectment proceedings served on each of them are offensive to the provisions of the Constitution, in particular Article 40.1, and/or Article 40.3.1°, Article 40.3.2° and/or Article 40.5.
The additional article cited in this case but not in Mrs Colmey’s case is Article 40.1 which provides:
All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
The plenary summons also seeks a declaration not sought by Mrs Colmey that the notices to quit are null and void and of no effect and offensive to the provisions of the Constitution. In this application the plaintiffs seek an interlocutory injunction to restrain the defendant from doing anything in pursuance of the notices to quit or of the ejectment proceedings. Here Mr Mackey said that what they are attacking are the ejectment proceedings involved in enforcing the notices to quit. The Constitution guarantees to protect from unjust attack and in these cases it is unjust for a developer to throw innocent tenants on the side of the road.
In my opinion there is no difference in principle between this case and Mrs Colmey’s case. While this case might be considered prima facie to be extremely weak, it is a matter which the plaintiffs are entitled to have decided after a full hearing.
For the same reasons as given in the other case, I consider that the plaintiffs in this case are not entitled to an injunction as the balance of convenience favours keeping access open to the District Court.
Mallows v Governor of Mountjoy Prison
[2001] IESC 108 (31 July 2001)
THE SUPREME COURT
Record No. 2000/35
Murphy, J.
Murray, J.
Geoghegan, J.
BETWEEN
ARNOLD MALLOWS
Applicant/Respondent
AND
THE GOVERNOR OF MOUNTJOY PRISON, IRELAND
AND THE ATTORNEY GENERAL
Respondent/Appellants
Judgment delivered the 31st day of July. 2001 by Murray. J.
This is an appeal against the Order of Mr. Justice O’Donovan made on the 28th January, 2000 in which the learned High Court Judge made an Order pursuant to Section 53 of the Extradition Act, 1965 discharging the Applicant from the custody of the First-Named Respondent in Mountjoy Prison where he had been detained on foot of two warrants issued by the District Court pursuant to Section 47(1) of the Extradition Act, 1965 ordering his delivery into custody of a member of a police force in England and Wales. These two warrants along with a third warrant (which was subsequently withdrawn) were issued by the District Court on the 10th May, 1999 and concerned offences alleged to have been committed in England and Wales between 1992 and 1996.
Section 53 of the Extradition Act, 1965 provides as follows:-
“If the person in respect of whom an order has been made under Section 47 is not delivered up under the order within one month after it was made the High Court, upon
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application by or on behalf of that person may, unless reasonable cause is shown for the delay, order him to be discharged”.
Facts:
As appears from the chronology of events which I set out below, the Applicant was not extradited within one month of the making of the District Court Orders. Although the District Court Order was made on the 10th May, 1999 the focus of this appeal is centred on the period from the 16th June, 1999 when an application for judicial review to the High Court by the Respondent in respect of those Orders was refused and the 20th January, 2000 being the date on which he initiated these proceedings in the High Court.
The proceedings initiated in the High Court on behalf of the Respondent sought a conditional order of habeas corpus on the grounds that he was being unlawfully detained because he had not been delivered up to the authorities seeking his extradition within one month from the making of the District Court Order as required by Section 53 of the Extradition Act 1965 and there was no reasonable grounds for such delay. When the matter was heard and determined by the High Court the application for habeas corpus was deemed, presumably with the consent of the parties, to be an application for his discharge pursuant to section 53 of the Act.
The High Court ordered the discharge of the Respondent pursuant to that section on the grounds that there was delay in delivering up the Respondent pursuant to the District Orders which greatly exceeded the period of one month within the meaning of Section 53 and that the State had not shown reasonable cause for the delay. While the learned High Court judge held that Section 53 conferred a discretion on the High Court to refuse to discharge the Respondent even where no reasonable cause was established for the delay, he concluded in
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the circumstances of the case that that discretion should be exercised in favour of discharging him.
It is against that Order of the High Court that the Appellants appeal.
Chronology of Events:
The essential facts of the case are not in dispute and the agreed chronology of events are as follows:
(a) 22nd January, 1999:
The Respondent was arrested on foot of three warrants issued by an appropriate authority in England and Wales in respect of offences alleged to have occurred between July 1992 and July 1996. Although granted bail he was not in a position to avail of it and remained in detention on foot of those warrants until the determination of the application to the District Court for Orders for his extradition.
(b) 10th May, 1999:
The District Court made three orders on foot of the three warrants for the delivery of the Applicant into the custody of a member of the Hertfordshire constabulary in the United Kingdom. The committal warrants were expressly addressed to the Superintendent of an Garda Síochana at the Bridewell Garda Station and provided that the Applicant was to be delivered into the custody of a member of the Hertfordshire constabulary and further ordered that the Applicant be lodged in Mountjoy prison, there to be detained by the Governor for a period of not less than fifteen days from the date thereof until the date of
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his delivery as aforesaid and for any other period as may be “necessary according to law”. The Respondent was not represented before the District Court, his solicitors having earlier withdrawn from the case. He remained in custody in Mountjoy until discharged by the Order of Mr. Justice O’Donovan.
(c) 15th May, 1999:
The Applicant instituted proceedings seeking judicial review of the District Court Orders. By letter of the 15th May, 1999 the Governor of Mountjoy prison alerted the Chief State Solicitor of that application to the High Court. This application was not accepted by the Registrar of the High Court for want of form.
(d) 29th May, 1999:
The Applicant again applied to the High Court for a judicial review of the District Court Orders. The making of the said application and its contents were notified by the Governor of Mountjoy prison to the Chief State Solicitor by letter of the same date.
(e) 16th June, 1999:
By letter of this date, the Applicant was informed by the Registrar of the High Court, via the prison authorities, that his application for judicial review had been refused by an order of Carney, J. A copy of that letter was placed on the Respondent’s prison file.
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(f) 6th December, 1999:
By letter of this State the Respondents English solicitors wrote to the extradition unit, Garda Headquarters, of which the following is a relevant extract: “We act on behalf of the above named who is presently on remand at Mountjoy prison awaiting extradition. Indeed our client has appealed against the earlier decision made by the lower Court and is waiting a hearing date. Having regard for the fact that the prosecution in the United Kingdom will not now be pursuing the first count against our client, he has decided to withdraw his appeal, with immediate effect and consents to his formal extradition. Accordingly we would ask that arrangements be made, enabling our client to return and to be placed before the Watford Magistrate Court”. By letter dated 7th December the English solicitors wrote substantially to the same effect to the Chief States Solicitors Office.
(g) 15 December, 1999:
By letter of this date the English Solicitors wrote again to the Chief State Solicitor stating “we are anxious to have their client returned to the High Court so that formal consent can be obtained for this extradition.” In addition they stated that having discussed the matter with the officer in charge of the case at Hertfordshire constabulary “it has been agreed that subject to approval from Dublin, my client will be extradited back to the United Kingdom on Thursday 6th, January, 2000. … Would you be kind enough to confirm that arrangements can be now be made for the formal Extradition Order to be made for the date referred to above.”
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(h) 21 December, 1999;
By letter of this date the Chief State solicitor responded to the English solicitors letters of 7th and 15th December stating that it had been ascertained that “Mr. Mallows does not have any High Court proceedings in existence, the same having been dismissed by Carney, J in the High Court;” and “the United Kingdom authorities no longer wish to proceed on Warrant B.” The letter then went on to state that it was intended to return to the District Court “at the earliest date possible to have warrant B discharged” and that arrangements would be put in place for the Respondents extradition as soon as possible after that event.
(i) 7th January, 2000:
The Order by the District Court in respect of Warrant B was struck out.
(j) 20th January, 2000:
A conditional order of habeas corpus was granted to the Respondent.
The Affidavit filed on behalf of the Chief State solicitor in these proceedings acknowledges that notification of the application for judicial review was received from the Governor of Mountjoy prison. Having received notification from the Governor of Mountjoy of the second application for judicial review, which of course was an ex-parte application, the State solicitor, following an enquiry from the Extradition Section of An Garda Síochana, contacted the Registrar of the High Court whom the State solicitor says advised him that there was no record of any proceedings having been instituted but that it was possible that as it
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involved a personal applicant it may have been given to another Registrar and may not yet have been listed. The State solicitor explained that normally when documentation is received from the prison authorities pertaining to an application for judicial review by a personal applicant, the Office of the Chief State solicitor does not take any action in the matter until such time as it is notified that the matter is listed in the non-jury motion list for a particular Monday. No further enquiries were made concerning the status of the Respondent’s application to the High Court by the Chief State solicitor until the letters referred to above were received from the Respondent’s English solicitors in December, 1999. It was only at that stage that the Chief State Solicitor’s office ascertained that there were no High Court proceedings in being and that they had been dismissed by Carney, J. on 16th June, 1999. So far as the Extradition Section of An Garda Síochana was concerned, it had learned on 8th June, 1999 that the Respondent had made an application for judicial review. It appears that from that point on the Extradition Section was awaiting further instructions. Nothing happened until they received the letter dated 6th December, 1999 from the Respondent’s English solicitors.
The Issues:
In the High Court, the learned High Court judge ruled that the word “may” in the phrase “… may, unless reasonable case is shown for the delay, order him to be discharged” to be found in Section 53 of the Act should be interpreted as a permissive or enabling expression which allowed the Court a residual discretion whether or not to grant a discharge of the person concerned even where reasonable cause is not shown for the delay involved. Having so ruled the learned High Court judge then proceeded to exercise that discretion in favour of discharging the Respondent having regard to the circumstances of the case and in
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particular that the Respondent had spend six months in jail in this country which he would not have otherwise spent by reason of that delay.
Although there are numerous specific grounds in the notice of appeal all of them are concerned with the manner in which the learned trial judge exercised that discretion and none of them refer to the learned trial judge’s ruling on his interpretation of the word “may” in Section 53. This is not surprising since it was a ruling in favour of the Appellants. There is no cross appeal.
Both parties in their written and subsequent oral submissions addressed the question as to whether the term “may” should be interpreted in its broader and permissive sense or whether it should be interpreted in a mandatory sense requiring the High Court to release the Respondent once no reasonable cause had been shown for the delay. Notwithstanding this and having regard to the fact that the interpretative point was not made the subject of appeal it seems to me that the proper approach to this appeal is to address first the substantive ground of appeal concerning the exercise by the learned High Court judge of his discretion. It is questionable whether it would be appropriate at all to address an issue concerning the construction of the section when it was not the subject of an appeal but in any case I do not consider it should be addressed unless for exceptional reasons it is necessary to do so in order to do justice to the parties.
Discretion of the Court:
The finding by the learned High Court judge that reasonable cause for the delay had not been established was not contested by the Appellants nor indeed could it have been. Neither is it in issue that the delay in rendering the Respondent to the United Kingdom authority prior to the 20th June, 1999 had been properly explained because it was reasonable
-9-
for the State to refrain from seeking to implement the District Court Orders while judicial review proceedings were pending and up to the date when the time for appealing the refusal of the High Court expired. This was the 2Oth July, 1999. What is in issue is the consequence of the unjustified delay in implementing the District Court Orders from that date to January, 2000.
It was submitted by the Appellants that general discretion given to the High Court by Section 53, even in circumstances in which reasonable cause has not been established, means that the court must consider the circumstances of the case as a whole before deciding whether to discharge the Respondent.
One of the circumstances relied upon by the Appellants as a ground upon which the learned High Court judge ought to have exercised his discretion not to discharge the Respondent is the belief which existed at all times on the part of the Chief State solicitors office that there was pending before the High Court a judicial review of the District Court Order. It was submitted that the Respondents in acting upon that belief, behaved reasonably, albeit upon a misplaced assumption.
In addition to the foregoing factor it was submitted that this incorrect assumption could have been corrected by the Applicant himself. The Applicant had provided no explanation as to why he did not correct that misapprehension on the part of the State. It was submitted that in such circumstances it was difficult to see how a discretion could be properly exercised in the absence of any explanation from the Applicant on this point.
This is a rather audacious submission on the part of the State. First of all it was known that the Respondents application to the High Court was lodged on the 29th May, 1999. Secondly the Order of the High Court refusing the application was transmitted to the prison authorities and thereafter remained on the Respondents file in the prison. Thirdly,
-10-
between June 3rd and December 20th approximately no enquiry was made by the Office of the Chief State Solicitor as to the status of the 29th May proceedings. There was no proper basis for assuming in those circumstances that the application to the Court was still in being. In those circumstances, and for the reasons I refer to later, it hardly lies on the State to rely on a failure of the Respondent to correct a wrong impression which the State should not have relied on in the first place.
Moreover, the Extradition Acts 1965 to 1994 lays down clear rules and procedures by which persons may be arrested and brought before the Courts for their rendition to the United Kingdom to stand trial. Such persons enjoy the presumption of innocence which applies to all citizens. Section 47 (1A), as amended by the Extradition Act 1994, provides that a person who has been the subject of an order under that section shall, subject to certain exceptions, be brought by the Garda Síochana as soon as may be to a point of departure from the State and there delivered into the custody of a member of the police force of the place in which the warrant concerned was issued. That subsection and Section 53 in my view reflects a public policy discernible from the Extradition Acts that persons subject to extradition or rendition procedures should, subject to certain savings in respect of the initiation of court proceedings, have their cases dealt with expeditiously and at least within one month of the making of an order under Section 47, unless reasonable cause is shown for delay. One of the underlying reasons for these two provisions is perhaps the fact that a person who is in custody awaiting extradition or rendition after the making of a District Court Order is in a form of detention which is no longer subject to routine supervision by the courts even though he or she has not been convicted of any offence. A citizen who is detained pending trial is subject to a range of legal provisions which govern when he or she must be brought back before either the District Court or the Court of trial. On the other hand an unconvicted person in detention awaiting
-11-
extradition is effectively dependent on the administrative arm of the State to ensure that he or she is not kept in custody any longer than is necessary to effect surrender to the authorities seeking rendition or would be, but for Section 23. Here the Oireachtas have chosen to protect the right of a person in custody awaiting extradition to be kept in custody for no longer than is necessary or at least no longer than one month unless there is justification for doing so. The Constitution guarantees that no citizen shall be deprived of his personal liberty save in accordance with the law. In my view Section 53 requires the State to ensure that persons who are the subject of an order for extradition or rendition are not kept in custody for a period longer than one month unless proceedings have been initiated under Section 50 of the 1965 Act or there is other good reason for doing so. Section 53 also has the effect of respecting all individual’s right to a speedy trial where he or she is being detained by the State for the purpose of being put on trial even if that trial is to take place outside the jurisdiction. The State has a duty to vindicate those rights.
In this case the Respondent’s application for judicial review was refused on June 16th 1999 and the order of the High Court languished on his prison file from that date without any step being taken by the State authorities until they were written to by his English solicitors in mid December of that year.
The State were also aware that the Respondent was not legally represented and had not been since his solicitors discharged themselves prior to the making of the District Court Orders. The State sought to seek some comfort from the fact that the Respondent had English solicitors acting for him as and from 2nd December. However, it is clear that their primary concern was the English proceedings pending before the Courts in that jurisdiction and that they did not know or really understand what was happening with regard to the proceedings in
-12-
Ireland until apprised of the true situation by the office of the Chief State solicitor when it finally made enquiries in December, 1999.
In my view the learned High Court judge was correct finding that as a result of the inaction by the State, the Respondent spent six months in jail in this country which otherwise he would not have had to spend.
The duty of the State to ensure that procedures under the Extradition Acts are carried out properly is not diluted by the fact that a person, in the situation of the Respondent, through ignorance or otherwise, does not make an application under Section 53 at the earliest possible moment. Accordingly, the submission that the learned High Court judge exercised his discretion wrongly because, as it was put, the instrument by which the Respondent might shorten his custody lay in his own hands must be rejected. I would simply add that this argument has resonances of the argument made in the State (Quinn) v Ryan [1965] I.R. 70 that there is a constitutional right of resort to the courts but only if one specifically asks for it and which was roundly rejected by this Court.
It was also submitted on behalf of the Appellants that the correspondence from the English solicitors in December in some way constituted an acquiescence by the Respondent to being extradited notwithstanding the failure on the part of the State to respect Section 53 of the 1965 Act. For many of the reasons already stated above I do not consider there is any substance in this submission. Apart from the fact that the concern of the solicitors, situated in England, were primarily the charges which the Respondent would face on return to England and that they were clearly unaware of precisely what had happened to the Respondent in this jurisdiction, their approach, no more than that of the Respondent himself, could not absolve the State from the duty to observe the law.
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Finally, the Appellants relied on an unreported judgment of the Queen’s Bench Division of England of Wales (29th October, 1997) entitled Re Lindley for the proposition that one of the factors to be taken into account, and which the learned High Court Judge failed to take into account in the exercise of his discretion, was the principle of international comity. While in that case it was held that there could be no question but that the requirements of international comity in the general sense could not be regarded as within the scope of the phrase “reasonable cause for the delay” (in a corresponding section in the English Act) the Court felt it could be taken into account when exercising the broader discretion even in the absence of reasonable cause for delay.
For their submission the Appellants relied on a statement of Kennedy L. J. in that case that “… damage to international relations is done if in a situation like this, because of a technicality, an offender or an alleged offender is not sent back to the Republic of Ireland (sic) to stand trial in circumstances where that, in reality, would appear to be the proper outcome.” It was acknowledged in that judgment that the relevance of international comity depends on the circumstances of the case. In that case delay was stated to be result of an administrative error involving a delay often days when the person concerned was not in custody. Even in its own terms that judgment cannot be compared in my view to the situation in this case. What happened here is no mere technicality. In any case the principle or notion of international comity is not applicable so as to override clear obligations created by statute. (see Halsbury’s Laws of England, 4th edition). Moreover, the duty of the State in the circumstances of this case is owed to the law and the Constitution, concerning as it does the liberty of the individual and it cannot be qualified by such a principle.
What happened in this case is that there was a breakdown of the State system, in so far as there was one, for giving effect in accordance with law to the procedures for the
-14-
implementation of orders for the rendition or extradition of persons pursuant to the Extradition Acts 1965-1994. Those directly concerned were in the difficult position that the nature of the application made by the Respondent-to the-High Court was ex-parte without notice to the State Authorities. However, they were aware that such an application had been made and that it had come to an end on June 16th, 1999 with an order to that effect on the Respondents file in Mountjoy prison. No steps were taken to ascertain or monitor the situation or to ensure that proper procedures required by the 1965 Act were followed. There clearly was an absence of a centrally established system for dealing with this kind of situation. The unhappy result was that the Respondent spent six months in custody through the fault of the State.
Approaching Section 53 of the Act as interpreted by the learned High Court Judge, in my view he acted correctly and within the bounds of his discretion in discharging the Respondent pursuant to Section 53. In my view there were no redeeming or countervailing factors which would have allowed him to exercise his discretion in any other way.
The broad construction given to Section 53 by the learned High Court judge as to the degree of discretion which he may exercise in the application of the section was the most favourable one from the point of view of the Appellants. Even on this basis, for the reasons stated above, the appeal of the Appellants must fail.
In these circumstances the question whether Section 53 should be interpreted as meaning that the learned High Court judge had no discretion but to discharge the Respondent once he found that no reasonable cause had been shown for the delay need not be addressed. Furthermore, as I indicated at the outset, it is an issue which was not the subject of the Appellants notice for appeal or a cross appeal by the Respondent.
I would dismiss the appeal.
Greenclean Waste Management Ltd v Leahy (No.2)
[2014] IEHC 314
JUDGMENT of Mr. Justice Hogan delivered on 5th June, 2014
1. Is after the event (“ATE”) legal costs insurance illegal in this jurisdiction by reason of the tort of champerty or other analogous public policy considerations? This is essentially the issue which now arises following a direction in that behalf by the Supreme Court. That direction was given following an appeal by the defendant against an earlier decision of mine. My earlier judgment may be summarised by saying that I would not make an order for security for costs pursuant to s. 390 of the Companies Act 1963 (“the 1963 Act”) by reason of the fact that the plaintiff had acquired ATE insurance, the insolvency of the plaintiff company notwithstanding: see Greenclean Waste Management Co. Ltd. v. Leahy [2013] IEHC 74.
2. In the present proceedings the plaintiff company sues for professional negligence arising from advices which were given initially in relation to the lease of certain industrial premises in 2001/2002. The plaintiff claims that the premises in question were in very poor condition at the end of the lease due to lack of effective maintenance coupled with wear and tear, so that a total refurbishment of the premises was required. The complaint here is that the defendants failed to advise it of the extent of its obligations under the repairing covenants under the lease.
3. In 2006 the lessor commenced an action in this Court claiming damages for breach of covenant against the plaintiff. These proceedings were ultimately settled the sum of €310,000, together with a contribution towards costs of some €150,000.
4. In these present proceedings, however, the plaintiff contends that the defendants were guilty of further and independent acts of breach of contract and professional negligence by, inter alia, failing to advise in relation to a relevant limitation period and by failing to disclose a material conflict of interest. So far as the latter point is concerned, it is contended that the defendants ought to have advised the plaintiff that it had a cause of action against a former principal of the firm who had given the original advice in relation to the lease. The defendants have denied that they were negligent in the manner in which they gave advise.
5. It was in response to the defendant’s motion for security for costs that the plaintiff fell back on the existence of the ATE insurance. As I have just noted, I ruled that, subject to the insurer giving an undertaking not to invoke a particular clause of the insurance policy, I was prepared to treat the existence of the ATE insurance as sufficient security in respect of any costs application which the defendant might make if they were to be successful in defending the proceedings. It was for that reason that I refused to make the order for security for costs.
6. The defendant appealed that decision to the Supreme Court. By order dated 25th September, 2013, that court directed of its motion that the appeal on the merits should stand adjourned, but that the matter should be remitted to me in the first instance to determine whether, as a matter of principle, ATE was champertous, illegal or otherwise unenforceable in law. The court also made an order joining the ATE insurer, DAS Legal Expenses Insurance Co. Ltd. (“DAS”), as a notice party to these proceedings. In effect, therefore, I am obliged for this purpose to consider the present status of the nominate tort of champerty in this jurisdiction and, perhaps more particularly, its present day extent and reach.
The present status of the tort of champerty
7. In evaluating a question of this nature, the starting point is generally to examine the state of the common law in general and, specifically, the common law of torts at the date of the coming into force of the Constitution on 29th December, 1937. As I observed in Healy v. Stepstone Mortgage Funding Ltd. [2014] IEHC 134:
“The common law as it existed immediately prior to the coming into force of the Constitution was carried over into our law by Article 50.1, save to the extent that such law was unconstitutional. While the common law is not frozen as of the date of the coming into force of the Constitution (29th December, 1937), in the case of the common law torts, the courts are, broadly speaking, confined to the general parameters of the law of torts as then existed as of that date. Entirely different considerations naturally apply where aspects of those common law rules are later found to be unconstitutional (as in McKinley v. Minister for Defence [1992] 2 I.R. 333) or where these common law torts have subsequently been modified, re-stated or even abolished by legislative enactment. Yet whatever might have been the case in the early days of the common law, the courts certainly do not have any authority now to invent entirely new categories of torts, as this is a matter which is reserved to the Oireachtas by Article 15.2.1 of the Constitution.
Leaving aside the incremental change and development which are standard features of the common law method, the courts can generally only develop or supplement the law of torts where this corpus of law has been shown to be “basically ineffective” to protect constitutional rights in a particular case…”
8. It cannot be doubted but that the common law torts of maintenance and champerty have long pre-dated the coming into force of the Constitution and, accordingly, these nominate torts were carried over into our law by Article 50.1 of the Constitution. Unlike, moreover, the position in England and Wales, the scope of these torts has not been directly affected or altered by legislation. By contrast, s. 13(1)(a) of the (UK) Criminal Law Act 1967 abolishes “any distinct offence under the common law in England and Wales of maintenance (including champerty…”). Section 14(2) of that Act nonetheless provided that the abolition of these offences should not affect any rule of law “as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal”.
9. This legislative change was nonetheless significant in altering the legal landscape, so much so that English case-law which post-dated this change may not necessarily be “of great assistance in determining the extent of the court’s jurisdiction to order disclosure at an early stage of third party funder in a jurisdiction such as Ireland where champerty and maintenance remains the law”: Thema International Fund v. HSBC Institutional Trust Services (Ireland) Ltd. [2010] IEHC 357, [2011] 3 IR 654, 661, per Clarke J. The actual significance of this legislative change may nonetheless be possibly overstated, since even the contemporary English case-law still evinces a suspicion of and a hostility to anything that smacks of trafficking in litigation: see, e.g., the decision of the English Court of Appeal in Simpson v. Norfolk and Norwich University Hospital NHS Trust [2012] QB 640, a case which is discussed further below. Besides, s. 14(2) of the 1967 Act may be thought to have expressly preserved the common law as champerty and maintenance in civil (as distinct from criminal) matters.
10. Maintenance may be defined as the improper provision of support to litigation in which the supporter has no direct or legitimate interest. Champerty, on the other hand: “is an aggravated form of maintenance and occurs when a person maintaining another’s litigation stipulates for a share of the proceeds of the action or suit”: Camdex International Ltd. v. Bank of Zambia [1998] Q.B. 22, 29, per Hobhouse L.J. Champerty may thus be described with only a little exaggeration as a secular form of simony within the legal system, for, as Hobhouse L.J. aptly put it in Camdex International, what “is objectionable is trafficking in litigation.”
11. Given that this is the conduct which underlies the basis for the tort, the scope of application of the law of champerty must thus accommodate itself to modern social realities and must be interpreted accordingly. The torts of maintenance and champerty were first formulated at a time when the legal system was weak, when the independence of the judiciary was not necessarily secure and the rules ensuring the attendance of witness and providing for their protection against attempts to interfere or suborn them were still in their infancy: see Giles v. Thompson [1994] A.C. 143, 153, per Lord Mustill. Diverse concepts such as legal aid, representative actions, pro bono work, “no foal, no fee” arrangements and the involvement in litigation of community and voluntary groups and trade unions in support of their members all lay far into the future.
12. This reality had been recognised for quite some time by the English courts ever before the enactment of the 1967 Act. In British Cash and Parcel Conveyors Ltd. v. Lamson Store Service Co. Ltd. [1908] 1 K.B. 1005 the protagonists were rival manufacturers of certain machinery for the storage of cash. The defendants, having obtained contracts for the hire of their apparatus from three of the plaintiff’s customers, agreed to indemnify the customers against any claims against them for breach of contract. The plaintiff then successfully sued their former customers and obtained an award of damages and costs. The defendants then paid these awards under the contract of indemnity, at which point the plaintiffs sought damages and an injunction for what they said amounted to maintenance.
13. The English Court of Appeal overturned a finding of maintenance by the High Court. The words of both Cozens-Hardy M.R. and Fletcher Moulton L.J. are still very much in point. As the Master of the Rolls stated ([1908] 1 K.B. 1005. 1012)::
“Beyond all doubt there was a time when what the defendants did would have been regarded as criminal. But there is little use in citing ancient text-books on this branch of law. The law has been modified in accordance with modern ideas of propriety…It is common knowledge that contracts of indemnity are recognised and unquestionably valid, and none the less because they may involve and indeed contemplate the institution or the defence of an action…..The defendants had a business interest, a commercial interest, which fully justified the indemnities or guarantees which they gave….”
14. Fletcher Moulton L.J. also observed that the old common law of maintenance was formulated in a different era and was based on public policy considerations which no longer obtain.
15. There is, nonetheless, no doubt at all that the tort of champerty not only still exists in this jurisdiction, but that it also has a practical vibrancy. This is well illustrated by the Supreme Court’s decision in O’Keeffe v. Scales [1998] 1 I.R. 290, but also perhaps more recently by the judgment of Clarke J. in Thema International Fund plc v. HSBC Institutional Trust Services (Ireland) Ltd. [2011] IEHC 654, [2011] 3 IR 654.
16. In O’Keeffe the plaintiffs had incurred a significant liability to their particular solicitor and this bill of costs was included in a head of claim in an action for professional negligence brought by them against their former solicitor. The defendant contended that this arrangement amounted to champerty. The Supreme Court apparently indicated that the arrangement was not champertous, but indicated that even if it were, it could not be used to “deprive people of their constitutional right of access to the courts to litigate reasonably stateable claims”: [1998] 1 I.R. 290, 295, per Lynch J. It follows that even a champertous law suit should not be struck out on that ground, as the remedy in that situation is for the injured party to sue for damages for the tort of champerty.
17. In Thema International the question was whether the defendants (who were sued in their capacity as funds custodian) were entitled to details of third party funding of the plaintiff.
18. Clarke J. held that the defendants were not so entitled, provided that the plaintiff informed the third party funder kept appropriate records of such funding and that the third party funder was informed that it might be made amendable to a third party costs order. Clarke J. was, however, satisfied ([2011] 3 IR 654,659) on the facts that the third party funder had “a sufficient connection with the plaintiff so as to take that funding outside the scope of maintenance and/or champerty.”
19. Clarke J. nevertheless went on to observe ([2011] 3 IR 654, 662):
“In Ireland it is unlawful for a party without an interest (or some other legitimate concern including charity) to fund the litigation of another at all and, in particular, it is unlawful to fund litigation in return for a share of the proceeds. The only form of third party funding which is, therefore, legitimate in Ireland is one which comes within the exceptions to maintenance and champerty. Charitable intent, where the funder does not hope to benefit personally, would, of course, take the case outside the third party funder costs order jurisdiction identified in Moorview, for that jurisdiction is confined to persons who fund litigation which they hope will indirectly benefit them in capacities such as shareholders and creditors.
That such parties are, even though they not be guilty of maintenance or champerty, exposed to potential orders for costs is clear….. However, such parties are not, in my view, in the same category as professional third party funders who make a commercial decision to “invest” in litigation in the hope of making a profit. After all, if the litigation is well founded then the shareholder or creditor is only getting their due. If an insolvent company has a good cause of action, then the shareholders or creditors who might benefit by any recovery on foot of that cause of action are getting no more than their entitlements. If the proceedings are bona fide progressed, then such parties are simply funding an entity in which they have a legitimate interest in the hope that that entity will be able to pay them monies due (in the case of creditors) or dividends or capital distributions (in the case of shareholders). The law of maintenance and champerty always made a distinction between such parties and professional third party funders. It seems to me that it is appropriate to maintain that distinction.”
20. Viewed thus, the principle expounded by Clarke J. in Thema International is really about trafficking in litigation. This is also the explanation for the unusual case of Simpson v. Norfolk and Norwich University Hospital NHS Trust [2012] QB 640, a case where the plaintiff claimed to have suffered infection by reason of what was alleged to be the hospital’s negligent failure to exercise proper infection control. He then purported to assign that claim for damages to the widow of another patient who had caught the same infection. While that other patient died of cancer, his widow maintained that the infection rendered his last days more difficult than would other have been the case. That claim against the hospital had, however, been settled without any admission of liability.
21. The English Court of Appeal held that the bare assignment for consideration of a cause of action for personal injuries was nonetheless unlawful. As Moore-Bick L.J. explained ([2012] QB 640, 652):
“…It is unlikely that a person would take an assignment of a cause of action if he or she did not have an interest of some kind (using the word broadly) in the outcome, …that an assignment of a bare cause of action in tort for personal injury remains unlawful and void. Since the law on maintenance and champerty is open to further development as perceptions of the public interest change, I do not think that it is possible to state in definitive terms what does and does not constitute a sufficient interest to support the assignment of a cause of action in tort for personal injury. However, I do not think that it is in the public interest to encourage litigation whose principal object is not to obtain a remedy for a legal wrong, but to pursue an object of a different kind altogether. If Mrs. Simpson’s real concern had been to ensure that Mr. Catchpole was able to obtain compensation, she could have taken steps to enable him to pursue the litigation in his own name, but in truth her only interest in the litigation is to pursue a campaign against the hospital. In my view it would be damaging to the administration of justice and unfair to defendants for the law to recognise an interest of that kind as sufficient to support the assignment of a cause of action for personal injury, because the conduct of the proceedings, including aspects such as a willingness to resort to mediation and a readiness to compromise, where appropriate, is entirely in the hands of the assignee and is liable to be distorted by considerations that have little if anything to do with the merits of the claim itself. There is a real risk that to regard a collateral interest of this kind as sufficient to support the assignment of a cause of action for personal injury would encourage the purchase of such claims by those who wished to make use of them to pursue their own ends.”
22. Moore-Bick L.J. went on to conclude ([2012] QB 640, 653) that the assignment in this case “plainly savours of champerty” and was therefore void: This was because
“…it involves the outright purchase by Mrs. Simpson of a claim which, if it is successful, would lead to her recovering damages in respect of an injury that she has not suffered. Whether in those circumstances she chose to transfer all or part of the money to Mr. Catchpole would be entirely a matter for her, but nothing in the agreement obliges her to do so. She would not be required to hold any damages recovered in respect of pain and suffering and loss of amenity on trust for Mr. Catchpole since, if the assignment were effective, it would operate to transfer the whole of his interest in the property represented by his cause of action to her. In my view this is a case of an assignment of a bare right of action, in the sense that it is an assignment of a claim in which the assignee has no legitimate interest, and is therefore void.”
23. Returning, nevertheless, to the observations of Cozens-Hardy M.R. in British Cash, the law as to champerty must be viewed “in accordance with modern ideas of propriety.” Here it must be recalled that, as we have already noted, these rules were originally formulated in an era long before the advent of legal aid, trade unions and community and voluntary groups. Even more importantly, access to justice is, of course, a constitutional fundamental having regard not only to Article 34.1 of the Constitution, but also having regard to leading cases articulating this principle such as Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345 to Blehein v. Minister for Health and Children [2008] IESC 40, [2009] 1 IR 275.
24. As Lynch J. made clear in O’Keffee, the law in relation to maintenance and champerty must be viewed – and, if necessary, modified – in the light of these modern principles and general constitutional understanding. One of these principles is that the courts should not place any unnecessary obstacles in the path of those with a legitimate claim. Indeed, this is why disproportionate legislative fetters on the right of access to the courts – such as the requirement contained in s. 2(1) of the Ministers and Secretaries Act 1924 to obtain the prior fiat of the Attorney General before suing a Government Minister which was at issue in Macauley – have generally been found to be unconstitutional. Accordingly, methods by which litigants can be assisted by others should be scrutinised with these principles in mind.
25. Against this background it can be said that agreements which involve the trafficking in litigation or – as in Simpson – which concern the assignment of a bare cause of action for purposes which the law does not recognise as legitimate will be held to be void as contrary to public policy on the ground that they savour of champerty. That, in my opinion, is true leitmotif which runs through all of this case-law in this area.
Does ATE insurance savour of champerty?
26. As I noted in Greenclean (No.1), ATE is a relatively new form of insurance product, at least so far as this jurisdiction is concerned. As the name implies, it is a form of insurance taken out in the wake of the specific event and it is often closely linked with “no win no fee” arrangements. The premium is generally high, but is only payable following successful costs recovery against another party or when the policy otherwise ends . In that judgment I also observed that:
“While one could not deny but that features of this type of policy may suggest to some a form of contingency fee arrangement and may also possibly involve features of champerty (i.e., sharing in the profits of litigation in which the party has no legitimate interest), it should also be acknowledged that ATE may well assist many in securing access to justice in a manner to which they might not otherwise have ready access. “
27. The policy states:-
“Your policy only covers you if you agree to pay your insurance premium and you have entered into a no win no fee agreement for your claim with your solicitor.
Your policy is linked to your no win no fee agreement and (unless it is ended earlier, in line with its terms) operates for the duration of your no win no fee agreement. The insurance premium due for your policy is payable at the end of your claim (by court decision or settlement) or when your policy ends if this is sooner. We can end cover under your policy if we and your solicitor agree that it is more likely than not that you will lose your claim.”
19. The policy then continues referring to what is described as “a prospects clause”. This provides:-
“We can end cover under this policy if we, after discussion with your solicitor, are of the opinion that it is more likely than not that you will lose your claim.”
20. The object of this prospects clause is to enable the insurer to make a judgment based on an estimate of likely prospects of success as to whether the plaintiff’s claim is likely to be successful. The policy goes on to say that the coverage extends to paying:-
“Your outlays and your opponent’s legal expenses and outlays and we will indemnify you for your insurance premium for your policy;
(a) if you lose; or
(b) if your claim is withdrawn by agreement on us and your solicitor after the start date of your no win no fee agreement; or
(c) if, after a lodgement or tender, you win but a court awards you damages that are less than the offer to settle, provided your solicitor has advised you not to accept the lodgement or tender.
We will pay your opponent’s legal expenses and outlays arising from any order the court makes against you but not for order for costs where there has been non-compliance with the rules or order of the court.”
21. Outlays are defined earlier in the agreement as:-
“Payments you or your solicitor make to others involved in your claim. These include the costs of mediation which you are liable, court fees, expert fees, accident report fees and Commissioner for Oath fees but not things like postage, travelling and other similar expenses”.
22. The policy further recites that the insurer will appoint the claimant’s solicitor “to represent you according to our standard terms of appointment.” The claimant is then further required to co-operate with the solicitor and the policy also states that the cover will end at once if:
“(a) your solicitor refuses to continue to acting for you with good reason; or
(b) you dismiss your solicitor without good reason; or
(c) your no-win no-fee arrangement ends for any reason; or
(d) you stop your claim without our agreement and that of your solicitor; or
(e) you do not give suitable instructions to your solicitor.”
23. It will be seen that the ATE policy is contingent on the operation of a “no win no fee agreement” and enhanced co-operation with the solicitor nominated by the ATE insurer. Counsel for the defendant, Mr. Allen SC, was sharply critical of the fact that the insured was required to co-operate so extensively with the solicitor nominated by the ATE insurer as a condition of the policy, but this it seems to me to be really not very different in principle to subrogation obligations undertaken by the insured under what one might term to be a conventional insurance policy. It cannot be said that the nominated solicitor exercises an objectionable degree of control over the conduct of litigation and, in any event, the litigant remains free to discharge that solicitor and reject that advice, albeit at the cost of the termination of the ATE policy.
24. In passing it may be noted that Lord Mustill took a similar view on this point in Giles v. Thompson [1994] AC 142, 162. In that case the plaintiffs had suffered damage to their motor vehicles for which the defendants were to blame. The plaintiffs had entered into agreement with car hire companies who specialised in hiring vehicles to such plaintiffs while their own were being repaired. One of the agreements provided that the car hire companies should have the right to pursue defendants for these costs in the name of the plaintiff, with the litigation conducted by the solicitor chosen by the car hire company.
25. The House of Lords decided – in the admittedly different atmosphere of the aftermath of the enactment of the 1967 Act – that these arrangements were not champertous, as the car hire companies had a legitimate interest in recovering these costs. Lord Mustill specifically rejected the argument that the nominated solicitor clause was objectionable, because the motorist still retained ultimate control of the proceedings, even if the termination of the solicitor’s retainer meant that the hiring charges of the motor vehicle were payable immediately. In my view, this reasoning also applies by analogy to the present situation.
26. In truth, the real objection to ATE insurance is to the size of the premium and the fact that it is normally payable only after a positive court decision or settlement. At one level it is easy to represent this as simply a disguised method of investing in litigation and recovering a share of the proceeds of the action under the guise of a handsome premium. If ATE coverage was confined to this, then I think the argument that it savoured of champerty and was therefore void as contrary to public policy would be almost unanswerable.
27. Yet there is more to ATE than this. There are certainly some cases – even if doubtless a minority of cases – where ATE is payable to cover the insured’s legal costs even where the insured has lost the litigation. The premium is also payable where the coverage is terminated in advance of the determination of the proceedings. It should also be borne in mind that ATE also serves important needs within the community by facilitating access to justice for persons and entities who might otherwise be denied this. In that regard, ATE insurers provide a legitimate service by providing access to justice and this service cannot properly be regarded as simply regarded as either investing in or trafficking in litigation.
28. Taken in the round, therefore, I find myself inclining to the conclusion that ATE insurance – at least in the form in which it manifests itself in these proceedings – is not on the whole champertous or amounting to maintenance. And reverting to the previous simile of secular simony, it may well be that if the venerable judges and jurists who first formulated the torts of champerty and maintenance sometime between the days of the Yearbooks of the courts of Henry IV and the emergence of the nominate law reports in the 16th and 17th centuries were to realise the direction in which the common law might now be heading, they would doubtless rise from their graves and affix their own theses of protest outside wherever the legal equivalent of Wittenberg Cathedral happens to be.
29. Yet, as Cozens-Hardy M.R. recognised over 100 years ago in British Cash, while the general parameters of the torts of champerty and maintenance are clear, the modern application of these principles is not frozen by reference to the social conditions and public policy considerations which pertained several hundred years ago. The law must accordingly move on and assess whether, by reference to modern conceptions of propriety, ATE insurance amounts to trafficking in litigation. For the reasons I have given, I conclude that, on the whole, it does not and that insofar as the insurer provides financial assistance to the litigant, it has a legitimate interest in the outcome.
Conclusions
30. It follows, therefore, that, for the reasons just given, I have concluded that the plaintiff’s ATE insurance policy does not amount to either maintenance or champerty and that the insurance policy is accordingly valid.
O’Brien v. Keogh
[1972] IR 144
O’Dalaigh C.J. 111
Supreme Court
O’DALAIGH C.J. , delivering the judgment of the Court:
These proceedings raise for consideration the constitutionality of sub-paragraph (ii) of s. 49, sub-s. 2(a), of the Statute of Limitations, 1957, under the following circumstances. The infant plaintiff, Thomas O’Brien, who sues by his mother and next friend, Mary O’Brien, was injured in a motor-car accident on the 8th September, 1963. On that occasion he was a passenger in a motor car which belonged to his father, the second defendant, when a motor car belonging to the first defendant collided with it. The plaintiff was then residing with his parents at Noard, Two-Mile-Borris, County Tipperary, and was aged 11 years, having been born on the 1st September, 1952.
The present proceedings claiming damages for personal injuries and loss were not issued until the 25th January, 1968, that is to say, more than three years after the accrual of the plaintiff’s right of action. Each defendant by his defence has pleaded that the action was not commenced within three years of the date of the accrual of the right of action and that the infant plaintiff’s claim is therefore barred by the Act of 1957. On the motion of the first defendant, Mr. Justice Murnaghan, by an order dated the 10th March, 1969, set down a preliminary issue for trial before a judge alone without further pleadings. The question raised in the issue is whether the infant plaintiff’s claim against each defendant is barred by the Act of 1957. Notice was thereupon given to the Attorney General that the plaintiff challenged the constitutionality of sub-paragraph (ii) of s. 49, sub-s. 2(a), of the Act of 1957 and the matter duly came before the President for argument. In a reserved judgment delivered on the 9th July, 1970, the President rejected the plaintiff’s contention.
The plaintiff’s father, the second defendant, consulted a solicitor within weeks of the accident, and the latter promptly wrote claiming damages from the first defendant. The claim made was not only for damages for the plaintiff’s injuries but also for damages for injuries suffered by other members of the O’Brien family who were also passengers in the family car. These claims were settled by the first defendant. With regard to the plaintiff’s claim, it would appear that some negotiations also took place but without a settlement being effected. At no time was a claim made against the plaintiff’s father until after the expiration of the statutory period of limitation. The plaintiff’s father went to seek work in England some time after he had instructed a solicitor and was absent for a period of upwards of 18 months. During his father’s absence the plaintiff was in the custody of his mother, Mary O’Brien, who is the next friend in these proceedings.
The Act of 1957 is expressed to be an act to consolidate, with amendments, certain enactments relating to the limitation of actions and arbitrations. The Act is divided into four parts. Part I (ss. 1-9) is preliminary and general. Part II (ss. 10-46) fixes the periods of limitations for different classes of action. Part III (ss. 47-72) provides for extension of limitation periods in a case of disability (ss. 48, 49), acknowledgment (ss. 50-60), part-payment (ss. 61-70), and fraud and mistake (ss. 71, 72). Finally, Part IV deals with the application of the Act and other limitation enactments to arbitrations. Part II opens by providing in s. 10 that the provisions of Part II shall have effect subject to the provisions in Part III for extension of the periods of limitation in the case of disability, acknowledgment, part-payment, fraud and mistake. Section 11 then sets out the periods of limitation in actions for contract and tort and certain other actions. Sub-section 2 of s. 11 deals with actions founded on tort and the general provision, contained in paragraph (a), is that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued; this period is reduced to a period of three years by paragraph (b) in actions claiming damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injuries to any person; and by paragraph (c) a similar reduction is made in the case of actions for damages for slander.
The extension of these, and other, limitation periods in case of disability is to be found in ss. 48 and 49. Section 48 defines a person under disability as (a) an infant, (b) a person of unsound mind, and (c) a person who is a convict subject to the operation of the Forfeiture Act, 1870, for whom no curator or administrator has been appointed under that Act. The general extension effected for cases of disability is that contained in sub-s. 1(a) of section 49: a person under disability at the date of the accrual of his right of action is given six years from the cesser of his disability within which to bring his action. There follow a number of limitations of this general extension. For instance, the extension is not to apply at all where the right of action accrued to some person (not under a disability) through whom the person under a disability claims; nor, where a right of action which has accrued to a person under a disability accrues on the death of that person to another person under disability, is any further extension allowed by reason of the disability of the second person; nor, in an action for the recovery of land or for money charged on land, can any action be brought by any person after the expiration of thirty years from the date of the accrual of the right of action to that person or to some person from whom he claims.
Sub-section 2 of s. 49 contains the modifications which have given rise to the question in this case. Sub-section 2, in full, is as follows:
“(2) (a) In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person
(i) subsection (1) of this section9 shall have effect as if for the words ‘six years’ there were substituted the words ‘three years’, and
(ii) this section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent.
(b) For the purposes of paragraph (a) of this subsection, ‘parent’ in relation to a person under a disability means his father, mother, grandfather, grandmother, stepfather or stepmother, notwithstanding that the relationship is illegitimate or in consequence of adoption under the Adoption Act, 1952 (No. 25 of 1952).”
The complaint is that sub-paragraph (ii) of sub-s. 2(a)of s. 49 is repugnant to Article 40 of the Constitution and specifically to the provisions of ss. 1 and 3 of that Article. It will be convenient to set out these sections in juxta-position to the impugned provision of the statute. Sections 1 and 3 of Article 40 of the Constitution are as follows:
“1. All citizens shall, as human persons, be held equal before the law.”
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
3. 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizens.”
The President in his judgment was of the view that it was not contrary to the Constitution to differentiate in favour of infants as against adults, nor was it unequal to differentiate as between particular classes of infantsi.e.,those under the control of a parent and those not under such controland that the defence of the statute must therefore succeed.
The argument against the Act of 1957 has been that the Act differentiates unfairly between infants under disability who are in the custody of a parent and those infants under disability who are not in the custody of a parent. The former are only allowed the limitation period appropriate to an adult who is not under a disability, while the latter have until their infancy ceases and the appropriate adult limitation period thereafter. It has been submitted that this is a differentiation based on where the infant is (i.e., on his physical location) and it is said that the differentiation offends against the guarantee of equality before the law contained in s. 1 of Article 40 of the Constitution. The answer that has been made to this submission is that it is too narrow a view of the provision of the statute to say that it is based on the physical location of the infant; it is said that the distinction between infants in the custody of a parent and those who are not in such custody is a distinction related to moral capacity and social function, and that therefore the distinction is valid under s. 1 of Article 40.
The second limb of the plaintiff’s argument is that the right to sue for personal injuries is a chose in action and a property right, and that it is one of the personal rights of a citizen which the State (under s. 3 of Article 40) has the duty to respect, defend, protect and vindicate; the plaintiff submits that sub-paragraph (ii) of sub-s. 2(a) of s. 49 of the Act of 1957 has patently failed to do this in the case of infants who are in the custody of a parent. The answer on behalf of the Attorney General has been that the statute assumes that infants in the custody of their parents will be looked after, and that this was a reasonable basis upon which to legislate and that it was within the competence of the Oireachtas to choose to legislate as it did.
The principles to be applied by the Courts in deciding whether or not any part of an Act of the Oireachtas is repugnant to the Constitution have been stated on many occasions. Acts of the Oireachtas enjoy the presumption of not being repugnant to the Constitution unless such repugnancy is clearly shown: The State (Quinn) v. Ryan 10; The State (Sheerin) v. Kenned 11; McDonald v. Bord na gCon 12 and East Donegal Co-Operative v. The Attorney General .13 The meaning of the provision which is here impugned is clear, and therefore there is no room for a choice between two constructions, of which one would be constitutional and the other unconstitutional, or of doubtful constitutionality as occurred in East Donegal Co-Operative v. The Attorney General .13 Nor can there be any question that nothing is to be found in the statute which debars a parent from invoking the statute against his infant child, as has been done in this case; however, it should be said that the second defendant pleaded the statute not for lack of parental affection but probably because of certain pre-accident contractual obligations.
Counsel for the Attorney General was right to concede that the right to litigate claims was a personal right of the citizen within Article 40 of the Constitution.14 Mr. Justice Kenny pointed out in Ryan v. The Attorney General 15 that there are many personal rights of the citizen which follow from the Christian and democratic nature of the State and which are not mentioned in Article 40 at all, and that the general guarantee in Article 40 extends to rights not specified therein. This Court, in affirming his judgment in that case, agreed that the personal rights mentioned in s. 3, sub-s. 1, of Article 40 are not exhausted by the enumeration of “life, person, good name, and property rights” in sub-s. 2 of that section.
In the opinion of the Court the first submission, viz., that the principle of equality before the law enunciated in s. 1 of Article 40 is infringed by the provisions of the impugned sub-paragraph, is not sound and should be rejected. The distinction made between those in the custody of a parent, as defined in the section, and those not in such custody is not a distinction based on physical location. Difference of physical location is an accidental difference; the essential difference is between being in the custody of a person who is either a parent or is, in effect, in loco parentis on the one hand and not being in such custody on the other hand. Far from effecting inequality, the purpose of the provision would appear to attempt to establish equality between the two groups. As was said in the judgment of this Court in The State (Hartley) v.Governor of Mountjoy Prison (21st December, 1967) “a diversity of arrangements does not effect discrimination between citizens in their legal rights. Their legal rights are the same in the same circumstances. This in fact is equality before the law and not inequality . . .” Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances.16 It only forbids invidious discrimination.
The plaintiff’s second submission raises a more serious problem. Has the State in the provision which it has made with regard to infant citizens protected, as best it may, from unjust attack and, in the case of injustice done, vindicated the property rights of such citizens? Prior to the passing of the Act of 1957 all persons under the disability of infancy enjoyed the same rights whether or not in the custody of a parent: see s. 22 of the Common Law Procedure Amendment Act (Ireland), 1853. That provision was repealed by s. 9 of the Act of 1957 and the impugned provision has been substituted. It would appear that the impugned provision is a transcription of the British Act of three years earlier: see s. 2, sub-s. 2, of the Law Reform (Limitation of Actions, &c.) Act, 1954. It does not bear any evidence of having been considered in the light of the requirements of Article 40, s. 3, of the Constitution. It may first be noted that the parental custody which is being discussed is custody at the time when the right of action accrues. During the course of the argument a member of the Court put the case of a family party in an omnibus or car which is involved in a collision and the infant children and parents alike being injured, and the parents (father and mother) die later as the result of their injuries. In such case the statute, with its three-year limitation, begins immediately to run against the orphan children who, in the circumstances supposed, may now be inmates of a public-welfare institution. This is not a far-fetched case but one which could readily occur if, indeed, it has not occurred. It is not a sufficient answer for counsel for the Attorney General to say that the State has made exceptions, that these are reasonable and that the Oireachtas is entitled to choose. The indications are that the broad division into infants (or others suffering from a disability) in parental custody and infants not in such custody is not calculated to bring up for consideration the matters that should be borne in mind if infants’ rights are to be given reasonable protection. The case was also put in argument of an infant being injured when a passenger in his father’s car due to the parent’s negligent driving. Here again we are dealing with events which, far from being improbable, are of too frequent occurrence. In such case what adequate safeguards are made for the infant’s rights? The parent, as has happened here, may raise the statute against proceedings not taken within three years of the accrual of the right of action.
It is not possible to save by deletion some part of the impugned paragraph. The provision has no purpose without the words that establish the date of the running of the statute. It must therefore for its constitutional frailty fall in its entirety.
The infant plaintiff, it has been noted, was at all relevant times in the custody of one or other of his two parents; but it is clear that he has a sufficient locus standi to challenge the constitutional propriety of sub-paragraph (ii) of s. 49, sub-s. 2 (a), of the Act of 1957. First and foremost because the parent to whom he might reasonably have looked to protect his rights is permitted to raise the statute against him. Secondly, because, where a question of the constitutionality of a statutory provision is raised before the Court, the Court’s duty in testing the provision is to examine it in as wide a manner as if the provision had been the subject of a reference under Article 26 of the Constitution; that is to say, the Court must advert as best it can to the full scope of the provision away and beyond the problem presented by the circumstances of the particular case then before the Court.
Sub-paragraph (ii) of s. 49, sub-s. 2 (a), of the Act of 1957, it has been demonstrated, fails to match up to the guarantee contained in Article 40, s. 3, of the Constitution; therefore the Court will declare that the sub-paragraph is repugnant to the Constitution and invalid.
McMahon v Law
[2007] I.E.H.C.
Judgment of Mr. Justice MacMenamin delivered on the 15th day of June, 2007.
1. On the 2nd March, 2007 I delivered a ruling in relation to a motion brought by the first and second named defendants to strike out the proceedings against them on the grounds that they disclosed no reasonable cause of action. A further order was sought that the first named plaintiff be prohibited from instituting legal proceedings against the first and second named defendants without leave of this Court.
2. This ruling deals with motions for the same relief brought by the third and fourth named defendants (represented Mark de Blacam S.C.), the fifth named defendant (represented by Rossa Fanning B.L.), and the sixth named defendant (represented by Paul Fogarty B.L.).
3. The first named plaintiff was represented in this motion by Ms. Angela Heavey B.L. The second named plaintiff was not represented at this hearing although she was made aware that it was to proceed and had indicated at earlier hearings that she intended to take no further part in the proceedings.
4. The background to the application is described in the earlier ruling. In summary this motion brought by the various defendants relates to a plenary summons issued on the 4th December, 2006. It is the fourth proceeding issued by or on behalf of the first named plaintiff relating to lands at Killycard and Bree, Castleblayney, Co. Monaghan (registered under Folio Numbers MN9975 and MN10190). By deed of assignment dated the 15th January, 2007 Mary Comer assigned to W.J. Law (Castleblayney Ltd.) (the second named defendant) “all the benefit and advantages of the Circuit Court proceedings (relating to these lands) together with the costs and all other monies recoverable …”. The proceedings are described in more detail below”.
5. Mary Comer is the legal person representative of the late Peter Shevlin, a cousin of the first named plaintiff John McMahon. The deceased died in a road traffic accident in Castleblayney, Co. Monaghan on the 21st March, 2002. The first named plaintiff Mr. McMahon, alleges that over the years a relationship or partnership evolved between himself and Mr. Shevlin who was John McMahon’s mother’s nephew. Mr. McMahon contends that there was a form of agreement or trust arrangement whereby, in return for taking care of the farm, Mr. Shevlin would bequeath the farm to him. At the time of his death, Peter Shevlin had not made a will in favour of Mr. McMahon. He died intestate. The lawful beneficiaries in the intestacy were the third and fourth named defendants who live in the State of New York. They are the nephew and niece of the deceased and therefore his next of kin. In the Circuit Court proceedings brought by Mary Comer on the 16th March, 2004 against the first named plaintiff for vacant possession of the lands, John McMahon counterclaimed seeking a declaration of his entitlement to those lands which he used and occupied. These proceedings were heard on the 26th January, 2006 where an order was made as to the Comers’ entitlement and restraining Mr. McMahon from entering onto the lands after the expiration of a period of three months. This was appealed to the High Court. After the matter was part heard the case settled. There was a variation of the order on consent on the 21st February, 2006, to the effect that Mr. McMahon would hand over vacant possession of the lands on or before the 17th March, 2006. A sum of money (€80,000) was to be paid to John McMahon. The first named plaintiff, did not comply with his obligations under the consent order. There were a number of applications for attachment and committal brought against him by the Comers. These came before the Circuit Court. Mr. McMahon was ordered to vacate the lands by the 31st May, 2006 which period of time was subsequently extended to the 11th July, 2006. He did not vacate the lands.
6. Ultimately on the 14th July, 2006 Mr. McMahon was committed to Castlerea Prison in Co. Roscommon for seven days for contempt of court. On 21st July, 2006 Mr. McMahon was committed for a further six days for continuing contempt of court. He was ultimately released by order of that court on the 27th July, 2006.
During that time John McMahon initiated an enquiry under Article 40.4 of the Constitution challenging his detention for contempt of court. This was superseded by order of the Circuit Court made on the 27th July, 2006 releasing him and did not proceed.
7. On the 8th August, 2006 the first named plaintiff instituted a further set of High Court plenary proceedings against Mary Comer and Peter Comer seeking damages for negligence, breach of duty and misrepresentation against them. A motion for interlocutory injunctive relief which came on for hearing on the 23rd October, 2006 in that proceeding was struck out.
8. On the 1st November, 2006 the first named plaintiff issued yet a further set of proceedings by way of special summons (No. 544SP/2006). These proceedings sought essentially the same reliefs, asserting the right of Mr. McMahon to the lands and denying the entitlements of the Comers. These proceedings, specifically, included a number of allegations against solicitors (engaged by the Comers) alleging gross professional and fiduciary negligence and also putting in question whether Peter and Mary Comer were in fact related to the late Mr. Shevlin, a fact not in anyway questioned earlier. Upon the return date of the special summons dated the 23rd November, 2006 the Master of the High Court indicated that the proceedings had been incorrectly initiated by way of special summons and suggested to the first named plaintiff that should he wish to proceed further it should be done by way of plenary summons.
9. No appeal was brought against the order of the Master of the High Court which included an offer for costs which has not been discharged.
The instant proceedings-by plenary summons
10. The proceedings which are the subject matter of these applications were issued on the 4th December, 2006. They relate to the same subject matter. The plaintiffs sought a total of forty six reliefs including declarations that the first named plaintiff was the true and lawful owner of the lands the subject matter of the Circuit Court proceedings, as appealed and already dealt with in the earlier proceedings.
11. Any analysis of the essential reliefs sought in this plenary summons shows quite plainly it is again an attempt to re-litigate the issues which arose in the Circuit Court, the High Court on appeal and afterwards the subsequent High Court proceedings before the Master by way of special summons. Mr. McMahon now alleges that he was pressurised into entering the settlement (he was advised and represented by Senior and Junior counsel at the Circuit Appeal) and alleges that he felt threatened that if the proceedings were to proceed he ran the risk of losing his house in legal costs.
In the first ruling herein on the 2nd March, 2007 I refrained from expressing any view on the validity of this advice. Any subsequent material adduced before this court does nothing other than establish, that the effect if not the manner of advice given to Mr. McMahon and his wife, was correct. The most important point in this entire affair, at risk of further reiteration, is that, (unfortunately from his point of view), Mr. McMahon has established no claim at all on the lands, the subject of these proceedings.
12. Further evidential material adduced now in these motions persuades me that Mr. McMahon has, unfortunately a total mental bloc on this issue and has acquired a fixed and unalterable notion that he is entitled to the lands in the face of all or any evidence. This is despite the fact that the court has been shown a family tree drawn up by the sixth named defendant (who acted as Mr. McMahon’s solicitor in the Circuit Court and the High Court) which quite clearly establishes the nature of the relationship between himself, Peter Shevlin and the Comers. It is undisputed this was drawn up on the instructions of the first named plaintiff.
13. More remarkably there is now exhibited material from an application for planning permission submitted to the local authority on the 15th June, 2006 for re-zoning of the lands. This was at a date after the completion of the High Court proceedings, where Mr. McMahon had consented to vacate the lands in the consent signed by himself and his wife. This planning application was made in the name of John McMahon at a time when he acknowledged he was no entitled to the land. No explanation for this has been furnished to this Court. As in the case of the family tree it has simply been ignored by the plaintiff and his advisors.
14. These applications therefore are brought by the Comers, Messrs Corrigan, Coyle, Kennedy and McCormack, former solicitors to the deceased Peter Shevlin and who acted for the brother and sister Mary Comer and Peter Comer (Peter Shevlin’s next of kin), and J.J. Keenan and Son who were Mr. Mahon’s own solicitors and who he also wishes to sue.
15. In the course of the affidavits sworn in these motions further evidence has been adduced which should be seen in the context of the findings in the earlier ruling.
16. Mr. Paul McCormack, a partner in the fifth named defendants, states that subsequent to the death of Peter Shevlin, Mr. McMahon made enquiries of him as to whether the deceased had signed a contract agreeing to sell the lands to Mr. McMahon for a sum of €200,000. Mr. McCormack’s firm confirmed that no such contract had been signed and that no such instructions had ever been received. Even allowing for appreciation in value this must now be seen in light of the fact that the lands were ultimately sold by the Comers on the 4th August, 2006 for €10 million. If the late Mr. Peter Shevlin who was both elderly and frail, had signed a contract for the sale of the lands to Mr. McMahon for €200,000 it would surely have been a highly improvident transaction.
17. For completeness it should be mentioned that Mr. McMahon years previously had, on occasion retained the fifth named defendant (who afterwards acted for the Comers) on what were termed a number of “historical matters” including conveyance of the site upon which his house is built. But no evidence of any conflict of interest has been adduced.
18. This court has now been made aware that in the settlement of the proceedings reached on the 21st February, 2006, Mr. McMahon was to be paid the sum of €80,000 inclusive of costs in consideration of the assistance that he had given to the deceased during his lifetime. This was a settlement reached in the course of the hearing before the High Court. It contained terms that he was to vacate the lands which he failed to do. It is impossible to avoid the conclusion that Mr. McMahon has, quite simply, reneged on the settlement which he entered into on legal advice. The fact that the advice was unpalatable did not diminish its strength. It is perhaps a measure of the counter-productive stance later taken by Mr. McMahon that ultimately his own solicitor returned the cheque for €80,000 to the Comers’ solicitors and that now, as a result of various costs and expenses incurred in bringing about clear and vacant possession of the land, this sum has itself been significantly diminished.
19. The sixth named defendant Mr. Keenan (Mr. Mahon’s own solicitor in the substantive proceedings) in the course of his affidavit states that he has become aware since the swearing of his first affidavit on the 9th February, 2007 that various affidavits sworn by the first named plaintiff in his own right, and, allegedly in conjunction with a Mr. John Gill are exhibited or linked to a web site entitled “Victims of the Legal Profession Society”. As Mr. Gill is not a party to these proceedings the Court will not refrain from further comment.
20. Mr Keenan also deposes in affidavit as to the circumstances of the settlement in the context of the plaintiff’s allegation that he was placed under “intolerable pressure” to sign the settlement. The first named plaintiff had been in attendance for the entire of the Circuit Court proceedings on the 26th January, 2006 (where he was legally represented). He was in the process of giving evidence in the High Court appeal on the 21st February, 2007 when Mr. Justice Fennelly indicated that he would rise to allow the parties time to discuss settlement. Mr. Keenan states that John McMahon was in an ideal position to see how his case was proceeding and had the benefit of experienced Junior and Senior Counsel at all stages. It is deposed that the first named plaintiff was advised that any evidence adduced on his behalf did not support the alleged oral agreement that he maintained existed and that there was a significant risk of him losing the High Court appeal. It was in those circumstances an award of costs could be made against him.
21. On the 14th May, 2007, Mr. McMahon swore a further affidavit in this motion. As outlined in the earlier ruling, Mr. McMahon had, when the matter first came before this Court had been unrepresented. However, the second named plaintiff Ms. Sharma subsequently attended, on an adjourned hearing, and it emerged that her purported status in the proceedings was as a “McKenzie friend”. No information has been vouchsafed to this Court as to whether Ms. Sharma has any legal or professional qualification. It is clear however, that she had no entitlement to be joined as a party to the proceedings as a “McKenzie Friend” or upon any other basis. Mr. McMahon’s affidavit contains a number of highly remarkable averments, the more so as this was apparently drawn up with the benefit of the advice of the solicitor and counsel.
22. At para. 3 of that affidavit it is deposed:-
“In relation to the matters before the Court, I deny the substance and relevance of each and all of the statements made on affidavit by each and all of the defendants herein as if same were set out herein and traversed seriatim – except to state that I acknowledge and agree with such statements made by each and all which set out and refer to substantive issues which are the material of previous litigations and which are indeed res judicata at law.” (sic)
23. I find it difficult to understand the meaning of this paragraph. It would appear that Mr. McMahon denies the substance and relevance of what is deposed in affidavit, thereafter agrees with what was sworn against him in relation to the substantive issues and then accepts that they are res judicata.
24. In another paragraph Mr. McMahon alleges wrongful, concerted and orchestrated conduct of the defendant parties (by implication a form of conspiracy) and also seeks the deletion of the contents of the endorsement of claim of the proceedings in suit and the substitution therefor for “complaints” of what are termed as
(i) breaches of fiduciary duty,
(ii) breaches of professional duty,
(iii) unlawfulness as to equitable estoppels,
(iv) breaches of ordinary honesty,
(v) breaches of constitutional and human rights,
(vi) misleading of courts and other public offices,
(vii) abuses of the process of the court,
(viii) breaches of legitimate expectation.
25. A number of allegations are made against Mary Comer, phrased by opaque reference to legal terminology. These include suggestions that there was a failure on Ms. Comer’s part to make reference to a “clog” or “burden” surrounding what is stated to be a “stale claim to repossess these lands by herself as an estranged alleged closest member of the family who re-appeared after almost fifty years” (sic). A number of other generalised allegations are made. The applicant points to inconsistencies in correspondence. None of these are material to the issues herein and are only now apparently raised, after the substantive proceedings were complete and settled.
26. Legal submissions were made on behalf of Mr. McMahon at the hearing of these motions alleging conduct by the applicants which if true would constitute criminal and corrupt activity. None of these was borne out by any evidence. Regrettably this did not inhibit the making of these allegations in affidavit form and their repetition in submissions before this Court, unsupported by facts. No particulars of misconduct have been furnished in reply to a notice for particulars requesting such detail. No such detail was furnished by reference to evidence in the affidavit sworn by Mr. McMahon despite the fact that there was ample opportunity, over a number of weeks to obtain and adduce such evidence, if it was obtainable.
27. One point relied upon was the fact that the first set of proceedings were initiated by the Comers in the Circuit Court. It has been suggested that the fact that the jurisdiction of that court was invoked had, in some way undervalued the purported market value of the lands. The jurisdictional limitation on the Circuit Court by the rateable valuation of the lands has no such significance or effect.
28. At the conclusion of the previous ruling herein, I had urged upon the parties the possibility of considering compromise or mediation. This was prior to this Court having been informed as to the full nature of the compromise of the proceedings on the Circuit Appeal and also in the absence of additional evidence set out earlier in this judgment. Clearly in the light of what has now transpired the proposal is redundant.
Jurisdiction of the court to strike out proceedings and make an “Isaac Wunder” Order
29. In the course of the previous ruling herein reference was made to a number of authorities relevant in this area. These include Fay v. Tegral Pipes and Others [2005] 2 IR 261, Barry v Buckley [1981] 306 and also O. 19, r. 28 of the Rules of the Superior Courts. The observations and application of the principles made in the earlier ruling are as relevant here.
30. Reference was also made in the context of an “Isaac Wunder” order to the judgment of Ó Caoimh J. in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 and in particular six features therein identified justifying the making of such an order.
(1) Persistent litigation
31. There is evidence before this Court in these motions of the habitual or persistent institution of vexatious or frivolous proceedings against parties to earlier proceedings. This conclusion is not affected by the joinder of any additional parties. No reasonable cause of action has been disclosed against any party, including the sixth named defendant.
(2) Earlier history
32. The earlier history of the matter recited in this judgment and that of the 2nd March, 2007. A submission now made by counsel for the plaintiff is that it is now intended to strike out the entirety of the material contained in the indorsement of claim of the plenary summons in suit and to substitute generalised claims (see paragraph 24 of this judgment) not been in any way particularised, and clearly a rehearsal of earlier complaints under a new guise.
(3) Action must fail
33. The third feature identified the bringing on of yet a further proceeding to determine matters already determined by a court of competent jurisdiction when it is obvious that such action cannot succeed, would lead to no possible good, and where no reasonable person could expect to obtain relief.
(4) Improper purpose
34. A fourth feature is the initiation of an action for an improper purpose, including the oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights.
(5) Rolling forward issues into subsequent actions
35. A fifth feature identified in Riordan is the “rolling forward” of issues into a subsequent action and repeated and supplemented often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings. (6) Failure to pay costs
36. The sixth feature is that there has been a failure on the part of the plaintiff to pay costs of earlier proceedings. The cost of the proceedings before the Master are not discharged.
All six features identified in Riordan are present here.
37. On the 2nd March, I refrained from expressing any final conclusion on the issue of an Isaac Wunder order; as to do so then might have had the effect of debarring the plaintiff as moving party or respondent from dealing with motions he had brought herein or restrict his right to defend the balance of the motions which were brought against him by the moving parties herein, the other defendants. The court has now heard all the evidence and the submissions in each of the motions and is no longer so restricted.
38. In Riordan v. Ireland (No. 4) [2001] 3 I.R. at p. 365. Keane C.J. observed:-
“… there is vested in this court, as there is in the High Court, an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to re-open litigation or to pursue litigation which is plainly groundless and vexatious. The court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public offices as well as by private citizens. This court would be failing in its duty, as with the High Court, if it allowed its processes to be repeatedly invoked in order to re-open issues already determined or to pursue groundless and vexatious litigation.”
39. The observations of Keane C.J. are as apposite in the instant case as they were in Riordan although the parties enjoined are not public officials.
Issues not raised in earlier proceedings
40. Finally, it is necessary to refer to Carroll v. Ryan and Others [2003] 1 I.R. at p. 309, one of the instances wherein reference has recently been made to the judgment of Wigram V.C. in Henderson v. Henderson [1843] 3 Hare 100 who observed:-
“I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to the litigation to bring forth their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject and context, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident omitted part of their case. The plea of res judicata applies, even in special cases, not only on the points upon which the court was actually required by the parties to form an opinion and put down as a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising a reasonable diligence might have brought forward at that time.” No special circumstances has been established here.
41. In Johnson v. Gore Wood and Company [2002] 2 AC 1 at p. 32, Lord Bingham noted that an important purpose of the rule in Henderson was to protect against the harassment involved in repeated actions concerning the same subject matter. He observed, appositely to this case:
“This harassment, in my view may arise whether or not a set of proceedings is pursued to judgment or settlement.”
Further authorities cited in the course of the judgment of Hardiman J. in Carroll which show that as a matter of public policy it is desirable in the general interest, as well as that of the parties themselves, that litigation should not drag on forever, that a defendant should not be oppressed by successive suits where one would do, and in the absence of special circumstances, parties should bring their whole case before the court, in a single set of proceedings.
42. In the ruling of the 2nd March, I stated:-
“An honourable compromise in any case is far preferable to a futile stand on principle”. This general statement remains as applicable now as it was then. It is clear however that attempts at compromise in this case failed. Matters have gone beyond redemption.
Serious imputations and assertions have been made unsupported by evidence.
43. Allegations of fraud or impropriety should be made only in circumstances where there is a sufficient evidential basis for them. It is not appropriate that submissions be made with extravagant claims asserted of misconduct without substantive factual basis. (See the judgment of Peart J. in Sheehy v. Ryan and Another (Unreported, High Court, 14th December, 2005) and Denham J. in Connolly v. Casey [2000] 1 I.R. p. 45). No evidential basis for such allegations has been established here.
44. The court will grant the reliefs sought by the applicants herein striking out these proceedings as being frivolous or vexatious. The court will also now grant an order prohibiting the first named plaintiff from instituting legal proceedings of whatever nature against any of the defendants named herein without the leave of this Honourable Court. These are powers which should be exercised sparingly. Unfortunately they must be invoked here.
O’Brien v Personal Injuries Assessment Board
and Law Society of Ireland Amicus Curiae
[2008] I.E.S.C. 71
Judgment delivered the 19th day of December, 2008 by Denham J.
1. The right to legal representation is at the core of this appeal.
2. This is an appeal by the Personal Injuries Assessment Board, the respondent/appellant, hereinafter referred to as ‘PIAB’, from the judgments of the High Court (McMenamin J.) [2007] 2
I.R. 1, and [2007] 2 IR 1 at p.40. Declan O’Brien, the applicant/respondent, is referred to as ‘the applicant’. The Law Society of Ireland is before the Court as an amicus curiae by order of this
Court.
3. There was a single issue determined by the High Court and that issue is before this Court on appeal.
4. The High Court declared, on the 11th March, 2008, that:-
“[PIAB] in declining to accept or act upon the authorisation dated the 16th August, 2004 (described as “a confirmation and authority by client”) by corresponding directly with the Applicant (and copying such correspondence to his Solicitors) is acting in breach of s. 7 of the Personal Injuries Assessment Board Act 2003 or without authority under any other provision of the Act.”
5. Having regard to that declaration the High Court did not find it necessary to rule on the balance of the issues referred to in the list of issues agreed between the parties.
6. The facts of this case were stated by the learned trial judge. With the benefit of his findings, I summarise the relevant facts in the following paragraphs.
7. The applicant is a single man who, at the relevant time for this action, was employed at the premises of Galtee Meats, in Co Westmeath, as a boner in a meat factory, and was working on a
sub-contract to a company known as Ard Meats Limited. In his job he boned carcasses of beef at a table.
8. The applicant alleges that in the course of his employment on the 5th November, 2001 he was involved in an accident. He claims that an overhead line which was carrying carcasses of meat
collapsed, as a result of which he was struck on the back and sustained injuries. He was taken to hospital and had a bone scan. As a result he was certified ‘off-work’ for a period of approximately
four months. It is claimed that he had a gradual return to work with periods off work when his back pain became acute. The applicant returned to work in February 2002. However, he claims that
he was able to produce only 75% of his previous output and that his earnings have suffered. He claims that he suffers pain and aches at the end of a day’s work.
9. The applicant did not commence proceedings immediately after the accident. However, on the 12th August, 2004 he attended at a solicitor’s office and instructed Mr. Denis Boland of P.V.
Boland & Co.
10. The applicant was told that under the Personal Injuries Assessment Board Act 2003, ‘the Act of 2003’, his claim would have to be initiated by applying to the PIAB.
11. Time was running in the case. The three year limitation period would run its course approximately eleven weeks after the applicant consulted his solicitor. Prior to the Act of 2003 the
applicant’s solicitor would have protected his position regarding the three year time limit by issuing a plenary summons in the High Court.
12. Mr. Boland, the applicant’s solicitor, on the 16th August, 2004 telephoned and had a conversation with a Ms. Jo Crowley, at a call centre which acted as an agent to which PIAB
outsourced the business of processing claims. Mr. Boland gave particulars of the claim and expressed his concern regarding the Statute of Limitations. He indicated that he would be sending an
authority to PIAB on behalf of the applicant, this would require PIAB to deal directly with him as the applicant’s solicitor. Mr. Boland was asked for the applicant’s phone number.
13. Within a few hours Ms. Crowley contacted the applicant on his mobile phone. By the end of the conversation the applicant had formed the view that he was being told by Ms. Crowley that
he did not really need the services of a solicitor and that all he needed to do was to send a medical report to the Board.
14. The learned trial judge held that the applicant’s view was erroneous.
15. The applicant was resentful of what he perceived as the position of PIAB.
16. Mr. Boland completed the application form, which he had obtained from PIAB. He also completed a ‘Confirmation and Authority’ document signed by the applicant. By this document Mr.
Boland had authority: (1) to act with reference to the applicant’s claim before PIAB, (2) to receive all settlement cheques, (3) solely to deal with all correspondence on behalf of the applicant, and
(4) to act in any subsequent court proceedings. The document also recited the applicant’s liability for all necessary outlay and legal costs incurred in proceedings before PIAB and acknowledged
that PIAB would not pay the applicant’s legal costs.
17. Mr. Boland wrote to the consultant surgeon who had treated the applicant. He was concerned because he had not received a medical report. He was also concerned that in the absence of
a medical report the application to PIAB would not be considered complete. In other words he intervened to expedite matters.
18. On the 19th August, 2004, PIAB wrote directly to the applicant. This was contrary to the procedure proposed by the applicant and Mr. Boland and at variance with the authority which had
been given to PIAB.
19. On the 24th August, 2004, Mr. Boland wrote to PIAB complaining that they had not recognised the authority he had furnished, which authorised him to act for the applicant. He also
indicated his difficulties in getting a medical report and his concern about not getting one before the expiry of the three years under the Statute of Limitations.
20. On the 26th August, 2004, Mr. Boland received a call from a Mr. Hewson of PIAB indicating that it would not deal directly with solicitors, but that PIAB would furnish copy
correspondence to Mr. Boland.
21. It was stated that the applicant’s claim would not be registered without a medical report.
22. There was correspondence and telephone calls in September. It emerged that PIAB would register the claim if the solicitor had not obtained a medical report for his client by the 31st
October, 2004.
23. On the 7th September, 2004, the applicant initiated judicial review proceedings seeking an order of mandamus directing PIAB formally to record and register the applicant’s claim to stop
the Statute of Limitation from running in respect of his claim, and to register his claim, having recorded it on the 19th August, 2004. An injunction was also sought directing PIAB to stop and cease
the interference in the client/solicitor relationship between the applicant and his solicitor, and an order seeking that PIAB abide by the irrevocable authority signed by the applicant on the 16th
August, 2004, in relation to his claim.
24. There were appearances in the High Court. The medical report arrived from the medical consultant, signed on the 18th October, 2004, and was furnished to PIAB, and the claim was
registered on the 22nd October, 2004. Therefore, it was unnecessary to pursue the relief of mandamus.
25. On the 1st December, 2004, the Law Society was permitted to appear in the proceedings as an amicus curiae, [2005] 3 I.R. 328.
26. Issue Paper
An issue paper was agreed by counsel for the parties. The first issue was whether PIAB, in declining to accept or act upon the authorisation dated the 16th August, 2004, and by corresponding directly with the applicant (and copying such correspondence to his solicitor), was acting in breach of s.7 of the Act of 2003.
27. The High Court
The High Court held that PIAB had not succeeded in demonstrating how its interference with the lawyer/client relationship was necessary, expedient or incidental to its functions.
28. The learned High Court judge referred to several significant features of the case to which he had regard, being:-
“(a) the fact that the matters in issue before [PIAB] are truly ones of substance. They relate to the applicant’s property right in his cause of action in tort. They are connected (albeit indirectly) with his constitutional right of access to the courts. These are matters of no small moment.
(b) The arrogation by [PIAB] to itself of the power to prescribe
(i) the form of authority, and
(ii) the manner in which communication shall take place between itself and claimants and/or their solicitors; this general practice albeit flexible in some aspects is significantly inflexible insofar as it relates to the applicant;
(c) the absence of an express authority contained within the terms of the Act of 2003 permitting of the adoption of such an approach. The approach imposes conditions which are not prescribed by any primary or secondary legislation;
(d) the specific recognition within the terms of the Act of 2003 of the rights to legal advice. This if anything highlights the potentially serious legal consequences of the entire procedure for a claimant;
(e) the gravity of the consequences of the procedures and their significance for the claimant. This is underscored by the fact that in certain circumstances, such as in respect of vulnerable claimants (s. 29) and withdrawal of applications (s. 47), the issues arising are of such seriousness that the Act of 2003 recognises the desirability of claimants obtaining legal advice before further steps are taken.”
29. The learned trial judge considered that there is implicit in the case the fundamental issue of the right to retain legal representation in contentious matters. He held that the right to legal
representation has application in administrative procedures when the matters in issue may have serious consequence to the parties or impinge upon their rights.
30. The High Court held, at p.38:-
“At a number of points the Act of 2003 provides for the claimant obtaining legal advice. Why is this so? Clearly, it is because such steps and such decisions may have serious legal consequences for a claimant. The consequence of successfully pursuing a claim before [PIAB] is therefore by no means insignificant. The claimant may obtain compensation at an early date and such compensation is achieved without risk of an adverse award of costs.”
31. The learned trial judge continued, at p.39 that:-
“Thus, even if I accept that the procedures before [PIAB] are administrative in nature, I am satisfied that by reason of their complexity, importance and potential consequences, they are such as to justify, not only access to legal advice, but also, such rights to legal representation as have been identified by the applicant in this case. Nor are such rights rendered irrelevant by the fact that [PIAB] does not conduct hearings.”
32. The learned High Court judge concluded by holding that the impugned conduct is without warrant under s.7 or any other section of the Act of 2003.
33. In light of the above decision the High Court held that it was unnecessary to consider any other issues.
34. Declaration
The High Court ordered a declaration, [2007] 2 IR 40, in the following terms:-
“[PIAB] in declining to accept or act upon the authorisation dated 16th August, 2004 (described as ‘a confirmation and authority by client’), by corresponding directly with the applicant (and copying such correspondence to his solicitors), is acting in breach of s.7 of the Personal Injuries Assessment Board [Act] 2003 or without authority under any other provision of the Act.”
35. Appeal
PIAB filed a notice of appeal against the judgments and order of the High Court. Thirty four grounds of appeal were filed, referring to submitted errors of law and/or fact of the High Court. PIAB seeks to have the applicant’s claim dismissed and for an order for costs in both the High Court and this Court.
36. Cross-Appeal
The applicant cross-appealed from the judgments and order of the High Court insofar as it limited the costs awarded to the applicant by declining to award certain specified costs. The cross-appeal will not be addressed in this judgment but will be a matter for consideration at a later stage in the proceedings.
37. Submissions on behalf of PIAB
Oral submissions on behalf of PIAB (written submissions having been filed) were made to the Court by Mr. Eoghan Fitzsimons, S.C.. Counsel referred to two issues of principle which arise on this appeal. On the one hand, the right to legal representation and that there should be no interference with the solicitor/client relationship. On the other hand, that PIAB is in charge of running its organisation and that it is not for others (e.g. the Law Society) to tell it how to conduct its business. Counsel referred to a number of matters, inter alia, (i) PIAB considered itself to be an administrative body with an administrative task, which can have no legal consequences for a person. Counsel referred to pages 20 to 23 of the judgment, which sets out PIAB’s practice with regard to solicitors acting for claimants, and said these findings were not contested by PIAB. (ii) It was submitted that PIAB acts solely in an administrative capacity, and that there are no direct determinative consequences to the applicant, it does not determine a dispute. (iii) It was submitted that the functions of PIAB are limited, that PIAB makes assessments in easy claims. Complex cases are excluded. The assessments are not binding on the parties, hearings are specifically excluded, in this purely administrative task. (v) Counsel stressed that PIAB’s case was that the Act of 2003 envisaged that PIAB could deal directly with the client. That the applicant had not demonstrated that his rights override PIAB’s rights to run their organisation as the Oireachtas intended it to do. Counsel made the argument that PIAB has the right to override a person’s wish to have a solicitor represent him. (vi) Counsel accepted that there is a right to be legally represented, but submitted that a person can be legally represented but that PIAB has the right to write directly to an applicant, and that PIAB would recognise the legal representation. (vii) Counsel submitted that while no specific provision of the Act of 2003 expressly authorised the practice of PIAB, it is implied, or is covered by section 54. (viii) Counsel submitted that there is no basis upon which to find that PIAB’s practice was in breach of section 7. (ix) As to whether the practice is authorised by any other section, counsel referred to and relied upon section 54(1) and (2). Reliance was placed on the terms “necessary”, “expedient”, or “incidental”. (x) It was submitted that the policy assists the swift processing of claims, omits delay, and reduces unnecessary legal costs. (xi) The Oireachtas had passed the legislation in the interest of the common good, to reduce costs and expenses. (xii) Counsel submitted that the learned trial judge erred in his approach to the issue, that he went too far in construing the statute, that he accepted that the constitutional right to legal representation lay with the applicant in dealing with PIAB.
38. Submissions on behalf of applicant
Oral submissions were made to the Court on behalf of the applicant (written submissions having been filed) by Mr. Paul Gardiner, S.C. He attacked the assertion that the policy assisted swift processing of claims, inter alia. He accepted that PIAB were entitled to adopt policies that were expedient, objectively so, but not when only subjectively so viewed by PIAB. It was submitted that the policy was an interference in the solicitor/client relationship. Examples were given of letters required under PIAB’s scheme. Further, that PIAB gives advice to applicants which affects the solicitor/client relationship. Also, that PIAB is involved in contentious issues, for while liability is not in issue, quantum is. Counsel submitted that the policy established by PIAB is to cut out solicitors but that the Act does not say that. The Act of 2003 does not alter the solicitor/client relationship, but simply adds the additional administrative process. Further, that there are legal consequences, e.g. if an applicant does not take an assessment and then goes to court he is in peril on costs. Also, obviously in this case, there are the Statute of Limitations issues.
39. Submissions on behalf of The Law Society
Mr. Dermot Gleeson, S.C., counsel on behalf of the Law Society, which had also filed written submissions, made oral submissions to the Court. He submitted that if the Oireachtas intended lawyers to be excluded it would have said so, but it did not. He submitted that the issues before PIAB have substantial consequences. He pointed out that the right to legal representation arises outside litigation. He submitted that the contention of PIAB that the Act of 2003 prohibits legal representation is unsustainable. He submitted that the right to legal representation and to legal advice is so fundamental that a court should be very slow to say that its exclusion was inferred in the Act. Counsel drew the Court’s attention to the different approach by PIAB to a claimant and to a respondent.
40. Decision
I have considered carefully the oral and written submissions of the parties and the amicus curiae. I would affirm the order of the High Court, and dismiss the appeal. PIAB should recognise the right to legal representation and contact the solicitor of the applicant accordingly. However, that does not mean that PIAB may not have a policy of also informing a claimant of the position of his case as it proceeds. Thus a copy of any letter PIAB sends to the applicant’s solicitor may be sent by PIAB to the applicant at the same time. My reasons are as follows.
41. Alternative resolution
The long title of the Act of 2003 provides that it is an Act to enable, in certain situations, the making of assessments without the need for legal proceedings to be brought for compensation for personal injuries, to prohibit, in those situations, in the interest of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the assessment or certain other circumstances apply, to establish a body, PIAB, and define its functions. Thus it marks the creation of PIAB as an alternative forum for assessments in personal injury cases, in certain situations, and to prohibit the initiation of the process in the courts. This reflects a policy decision of the Oireachtas to establish a board, in the alternative to or prior to court proceedings.
42. The establishment of alternative methods of resolving issues, alternative to court proceedings, has great merit in that issues more appropriate to alternative methods of resolution may be
decided outside the Courts. Thus, for example, the resolving of family law issues by mediation may be very beneficial and more appropriate for the family than the adversarial court process. Also,
the arbitration assists the resolving of issues. Indeed, the Commercial Court uses case management very effectively so that issues which may be settled are, and the critical issues only, on which
settlement may not be obtained, proceed. Thus, parties may be well served in general by having alternative methods of resolving issues.
43. PIAB was established by legislation and thus its functions and powers were created by statutes. If an alleged function or power is not to be found in the Act of 2003 then PIAB does not
have such a power or function. PIAB is an administrative body with administrative functions which apply to the assessment of damages prior to a case for damages proceeding in the courts.
44. Legal Representation
Legal representation is a right of special importance in common law jurisdictions where the legal system is adversarial. This right is referable to court proceedings, prior to court proceedings, and in situations where there may be serious consequences for a person and the Oireachtas has not exercised a constitutional balance excluding legal representation. The applicant has a right to access the courts and to litigate to recover damages for personal injuries. To advance these rights the applicant is entitled to legal representation. This right does not apply solely to litigation in court. While the process in PIAB is not a court it may conclude the claim with an assessment, or it may be a process preliminary to court proceedings. Thus the process before PIAB is a critical part of the applicant’s claim.
45. Any restriction of the right to legal representation would have to be addressed clearly in legislation. It could be stated expressly in legislation. Or it could be inferred if it were compellingly
clear from the words of the statute.
46. The Act of 2003 does not exclude expressly lawyers from acting for claimants in PIAB. The Oireachtas did not expressly state such intent in the legislation
.
47. Thus it is necessary to construe the Act of 2003 to see if it is compellingly clear from the words of the statute that the Oireachtas intended to bar lawyers from PIAB.
48. A key issue raised was the meaning of s.7 of the Act of 2003. Section 7 provides:-
“7.—(1) Nothing in this Act is to be read as affecting the right of any person to seek legal advice in respect of his or her relevant claim and no rule shall be made under section 46 that affects that right.
(2) Subsection (1) shall not be read as requiring any procedure to be followed by the Board or hearing to be conducted by it that would be required to be followed or conducted by a court were the relevant claim concerned to be the subject of proceedings.”
Clearly this section protects the right of any person to seek legal advice. It has been submitted that this does not include a right to legal representation. However, if the Oireachtas had intended to exclude lawyers from PIAB it could have said that clearly. This would be the section of the Act relevant to the issue, and yet the Oireachtas did not expressly exclude lawyers.
49. As it is not stated expressly in the Act of 2003, it was for PIAB to indicate how its policy of writing to claimants and copying letters to solicitors may arise within the Act.
50. The High Court held that PIAB had not demonstrated how its interference with the lawyer/client relationship is necessary, expedient or incidental to its functions. This reflects the wording of s.54 of the Act of 2003. Section 54 provides that:-
“(1) The principal functions of the Board shall be—
(a) to arrange for the making, in accordance with this Act, of assessments of relevant claims the subject of applications to it under section 11.
(b) to prepare and publish a document (which shall be known as the “Book of Quantum”) containing general guidelines as to the amounts that may be awarded or assessed in respect of
specified types of injury,
(c) to cause a cost-benefit analysis to be made of the legal procedures and the associated processes (including those provided for by this Act) that are currently employed in the State for the
purpose of awarding compensation for personal injuries,
(d) to collect and analyse data in relation to amounts awarded on foot of, or agreed in settlement of, civil actions to which this Act applies, and
(e) to perform any additional functions conferred on the Board under section 55.
(2) The Board shall have all such powers as are necessary or expedient for, or incidental to, the performance of its functions under this Act.
(3) The Board may perform any of its functions through or by any member of the staff of the Board duly authorised in that behalf by the Board.”
[Emphasis added]
51. PIAB asserted that not only was it entitled to adopt the policy which it did, but that it was obliged to do so under the Act. Further, that s.54(2), which states that the Board shall have all
such powers as are necessary, or expedient for, or incidental to, the performance of its powers, empowers PIAB to deal directly with claimants, as that is advantageous to, and is practical, and
assists, in the reduction of costs, and the advancement of efficient management. Further, that the policy can be justified under the doctrine of implied powers. I would reject these grounds.
52. PIAB is empowered to make assessments of relevant claims. It has such powers as are necessary, or expedient or incidental to the performance of its functions. The terms “necessary”,
“expedient”, or “incidental” should be considered disjunctively. PIAB submitted inter alia that they raised concepts which would be advantageous to or of a practical value to PIAB.
53. PIAB argued that the policy reduced legal costs and would lead to greater efficiency. The learned trial judge held that these were not reasons which could justify the policy. I agree, for, not
only are they not sufficient reasons for such a policy which interferes with a fundamental right, but they are not valid. A claimant cannot recover his costs for legal representation at PIAB, thus costs
are not in issue in PIAB. As to a claimant’s expenses, it is a core concept in the common law that a person is entitled to choose to have legal representation. If in time it transpires that more
claimants process their claim in PIAB by themselves, that is their entitlement. But if they wish, because of time constraints, or fear of dealing with institutions themselves, or any other reason, to have
legal representation, then they are so entitled to, in circumstances where the Oireachtas has not excluded the exercise of that right. As is the norm, the legal representatives will have the interests of
the claimant to the fore.
Nor has the claim of efficiency been proved. Indeed, the policy seems to make for more work. This was addressed by the learned trial judge, and I would not intervene in that analysis.
54. I am satisfied that the policy of PIAB has not been shown to be necessary, expedient or incidental to the functions of PIAB. I would affirm the judgment of the High Court on this aspect of
the case.
55. The evidence in the High Court showed that PIAB dealt with respondents’ agents and insurers, thus the policy of refusing to deal with legal representatives did not apply to the respondents.
Thus the submissions made by PIAB that it is required to deal with a claimant and not his/her agent was one sided. An equal approach is fair. Any other approach, especially as by their very nature
claimants would not have the skill or expertise of respondents’ agents or insurers, would be open to question on grounds of fairness, even if it were validly grounded on the Act, which it is not.
56. The Act itself contemplates that a claimant may deal with PIAB other than by himself, which by common practice means a solicitor. For example, s.79 of the Act of 2003 provides for the
service of documents at a claimant’s residence or “in a case in which an address for service has been furnished at that address”. This illustrates that a person may choose how to deal with PIAB. If
PIAB is given an address it should, unless there are good reasons to the contrary, comply with the request.
57. I would adopt and affirm the judgment of the High Court that the policy does not fulfil any function of the Act of 2003, does not expedite matters, and does not save costs.
58. PIAB submitted that it is a purely administrative body, that it is not a court, and that there are no proceedings before it. That the process is simply a postponement of court proceedings.
However, I am satisfied that the process before PIAB has serious consequences for a claimant. Thus, even if it is accepted for the purpose of the analysis that the process is purely administrative, the fact that there are serious consequences for an applicant is an important factor. It should be noted, however, that even though PIAB submitted that its decision is not determinative there are such examples. For example, an applicant may ask for an independent medical report, which would be arranged by PIAB. In that situation PIAB would be determining as between medical reports.
59. The fact that the process in PIAB is not adjudicative does not exclude the right to legal representation. There are many situations which are not adjudicative in which a person may wish to
have a lawyer by his side. The lawyer places the person on an equal footing. It creates a situation which is even handed. The concept of equality may be noted in this situation where the policy of
PIAB permits the respondents to have agents, but not the claimants. PIAB has no statutory warrant for such a policy.
60. Further, since s.51A(3) was inserted in the Act of 2003 by s.1 of the Personal Injuries Assessment Board (Amendment) Act 2007, if a claimant refuses an assessment and pursues a claim in
the courts and at the conclusion of that case he fails to obtain an award greater than that made by PIAB, the claimant will not be entitled to his costs, and a court may, in its discretion, order the
claimant to pay all or part of the respondent’s costs. Clearly, as a consequence of this fact alone, and ignoring the many other significant factors, a claimant’s claim before PIAB should be processed
very carefully and professional guidance may be very important. The lack of legal representation could have serious consequences for a claimant.
61. As the exclusion of legal representation is not expressly provided for in the Act of 2003, it is necessary to construe the Act to see if it may be inferred. Several rules of construction were
raised. I do not consider the rule of construction expressio unius est exclusio alterius, as advanced by PIAB, to be of assistance. Nor do I find the rule in pari materia to be of assistance. Both
are valid rules but are not of assistance to the construction of this Act, which has established a unique body. Further, the Acts put before the Court by PIAB are not of any assistance in construing
the provisions of the Act of 2003.
62. In the construction of statutes the primary rule is that they should be construed according to the intent expressed in the words of the Act itself. If the words of the statute are precise then
they should be given their ordinary and precise meaning. If the meaning is not plain then inferences may be drawn. But a court may not legislate.
63. Thus the first consideration is whether the language of the Act of 2003 is clear. I am satisfied that it is, it did not exclude legal representation.
64. However, even proceeding (which is not necessary) and considering the Act for inferences, I would also hold that PIAB had failed to establish its case. In construing the Act, and its
sections, there is no inference to be drawn that the Oireachtas intended to exclude lawyers acting for claimants at PIAB.
65. To take any further steps would be to speculate. Indeed, it would be to advance into the territory of the legislature. The Court is not entitled to go outside the words of the Act, while at the
same time trying to give effect to the intention of the Oireachtas. It cannot add words to the Act or read words into the Act which are not there.
66. Further, in construing the Act of 2003 I assume that the Oireachtas did not intend to breach a constitutionally protected right. On this ground alone, and not including other grounds
advanced and accepted in the High Court and here, I am satisfied that the Act of 2003 and s.54 in particular may not be construed so as to confer on PIAB the power to adopt a policy by which it
refuses to correspond directly with the legal representative of a complainant. This is a direct interference with the applicant’s right to legal representation and an indirect interference with the
applicant’s right of property in his personal injuries action. There is no foundation for such a policy in the Act of 2003.
67. The terms of the Act do not establish an administrative process of direct communication between PIAB and the claimants. For example, s.29, which was advanced as being a list of persons
who may act on behalf of a claimant, does not relate to the issue of agency, but to who may act in place of a person who is unable, for reasons such as minority or incapacity, to bring a case in their
own name.
68. I am satisfied that not only is PIAB’s policy not expressly stated in the Act of 2003, but it is also not compellingly clear that it arises by necessary implication from the Act of 2003.
69. PIAB is a statutory body in charge of running its organisation. It is a statutory body established by the Oireachtas. Clearly the Act of 2003 established a body which initially is in lieu of
court proceedings, with a procedure which is intended to be claimant friendly and easy to access, and with the aspiration that claimants could process the claim themselves without the assistance of a
legal representative. Thus while PIAB is required to accept the authorisation, and write to the applicant’s solicitor, this does not exclude PIAB from informing the applicant also. This could be done
by copying the correspondence issued to the legal representative to the claimant. There is nothing in the Act of 2003 which prohibits such a policy. This would advance the policy of PIAB as an
alternative forum, less formal than a court. It would also keep a claimant informed of the process. Such a practice, while it would recognise the applicant’s choice of having a representative, would
also advance the policy of PIAB. It has the benefit, for any claimant, and the applicant in this case, that it would keep him informed of the state of his claim.
70. Conclusion
At issue in this case is the policy of PIAB whereby it would write to a claimant and not his solicitor, although it would send a copy of the letter to his solicitor. PIAB asserted that it was empowered to adopt this policy by the Act of 2003. The only issue determined by the High Court, and on appeal to this Court, is whether PIAB is entitled by the Act of 2003 to make direct contact with a complainant or whether it is required to make contact with his solicitor, if a complainant, as was the position of the applicant, has appointed a solicitor to act on his behalf.
The right to legal representation is a fundamental right. The Act of 2003 does not expressly exclude lawyers from acting for claimants in PIAB. Nor, for the reasons given by the High Court and affirmed in this judgment, am I satisfied that a power to establish such a policy by PIAB may be inferred from the words of the Act of 2003. It may be that more people will process their claim in PIAB themselves as time goes by. But, lawyers not being excluded from PIAB by the statute, a claimant may choose to be legally represented. This choice may be taken for many reasons, such as a lack of time to attend to the claim, or a fear of dealing with institutions, or general illness while not rendering a person incapable affects their situation, or any other reason. The right to legal representation is a right which a claimant may exercise, in the knowledge that costs of legal representation will not be paid by PIAB. In such a situation PIAB should accept and act upon an authorisation such as was given in this case.
Even accepting that the process before PIAB is administrative, it may have serious consequences for a claimant. There may be consequences for refusing an assessment in PIAB and achieving a lesser amount subsequently in court. The process before PIAB is an alternative process, an alternative to a court process, however, it has significant consequences for a claimant.
If the Oireachtas intended PIAB to be a lawyer free zone it would have said so. The Oireachtas did not expressly exclude the right to legal representation. Nor are the words of the statute so clearly compelling that it may be inferred from the Act, under the rules of construction. Thus PIAB has no power to establish such a policy. Also, it is reasonable to assume that the Oireachtas did not intend to interfere, by inference or by implication, with the fundamental right to legal representation. A court would be slow to draw such an inference of such a breach of fundamental right. In this case I am satisfied that the statute did not intend to interfere with the right of legal representation.
Therefore, the policy of PIAB is an interference in the solicitor/client relationship, but it has no foundation in the Act of 2003. If the applicant wishes to have a legal representative, or considers that it would be in his interest to have a legal representative, then he is entitled to such representation.
However, PIAB is entitled under the Act of 2003, in the managing of its business, to keep a claimant informed of the process. PIAB is not a court. It is an alternative resolution process. It does not have the formality and rules of a court. Thus PIAB would be entitled to inform a claimant by, for example, sending to him a copy of any letter sent to his solicitor, at the same time as sending that letter. This keeps the claimant informed, is consistent with PIAB’s policy, and within its functions under the Act of 2003.
Consequently, I would dismiss the appeal.