Judges

Cases

O’Byrne v. Minister for Finance and Attorney General.

[1959] IR 1

MAGUIRE C.J. :
6 March 1958

The question for consideration on this appeal is whether the provision of Article 68 of the Constitution of the Irish Free State that the remuneration of Judges of the Supreme Court and High Court “may not be diminished during their continuance in office” prohibits the taxation of the salaries of these judges.
There is little doubt that the framers of the Constitution of the Irish Free State when drafting the Article had before them the provisions of Article III, s. 1, of the Constitution of the United States of America where a similar provision is to be found. They must also have had before them the provisions of s. 72 of the Commonwealth of Australia Act, 1900, and ss. 100 and 101 of the South Africa Act, 1909, where similar provisions which it is generally accepted were modelled upon the above mentioned Article of the Constitution of the United States are to be found.
The same question with which we are concerned here was raised in all three countries and we have been referred to the decisions of their Courts upon it. We are not bound by any of these decisions but a study of the arguments advanced and of the reasons for the decisions reached is extremely useful.
Very little that is new has been added here to the arguments advanced in these cases. The main contention in all the cases was on the one hand that to subject the remuneration of a judge to income tax is plainly to diminish it and thus to violate a constitutional or statutory provision that such compensation or remuneration may not be diminished. On the other hand the main contention was that such a provision is merely one of the safeguards protecting the independence of judges and must be read in its context. It was submitted that to subject their salaries to a tax which fell equally upon all citizens receiving incomes on the same level could not reasonably be said to be an attack upon the independence of judges. There was, it was said, nothing in the Article III, s. 1, of the American Constitution or the sections of the other Constitutional Acts which exonerate judges from the liability to contribute in common with other citizens towards the expenses of government.
Turning first of all to the history of the question and the cases in which it arose in the United States, there is to be found there some support for the view put forward on behalf of the appellant. There is first of all the fact that when in 1862 it was first proposed to tax judges’ salaries there was a prompt protest from the Chief Justice based upon the prohibition in Article III, s. 1, of the Constitution.”Language,” he said “cannot be more plain than that used by the Constitution.” Having given his reasons he concludes: “Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the compensation of Judges as unconstitutional and void.” The full text of the protest is to be found in the judgment of the Court in Evans v.Gore (1). The collection of the tax, however, proceeded. At the suggestion of the Chief Justice the Court ordered his protest to be “spread on its records.” In 1869 the question was referred to Attorney-General Hoar who gave advice in substantial accord with the protest of the Chief Justice. The tax was discontinued. A later Attorney-General in 1894 when the question again arose stated that “There never has been any doubt since the opinion of Attorney-General Hoar that the salaries of the President and the Judges were exempt.” So matters stood until the year 1919 when the tax was levied on the salary of a District Judge assessed under a statute of that year. In the case of Evans v.Gore (1) the question was raised whether the Judge “could be subjected to such tax consistently with the Constitution.”It was considered by the full court of nine Judges. With two dissentients, Holmes J. and Brandeis J., it was held that the tax operated to diminish the compensation of the judges in violation of the Constitution and was invalid. This decision was however in effect, though not expressly, reversed in O’Malley v. Woodrough (2) in the year 1939. Evans v. Gore (1) is however worth examining not alone because of the reasons which are given in the judgment of the Court but more especially for the reasoning in the minority judgment of Holmes J., with which Brandeis J. agreed, for it was the reasons there given which later found favour with the Court in O’Malley v. Woodrough (2). In seeking to discover the purpose of the Constitution in providing that the compensation of judges “shall not be diminished during their continuance in office” the Court considered the views of those who played a part in framing the Constitution. Passages from the writings of George Washington and of Alexander Hamilton in “The Federalist”are cited and also the remarks of Chief Justice Marshall in debate in the Legislature. The judgment also quotes an eloquent passage from the writings of President Wilson. Turning to the effect of the taxing statute the Court said, at p. 254:”Only by subordinating substance to form could it be held that his compensation was not diminished. Of course the conclusion that it was diminished is the natural one.” Again, at p. 255, it is stated:”The prohibition is general . . . and the reasons for its adoption as publicly assigned at the time make with impelling force for the conclusion that the fathers of the Constitution intended to prohibit diminution by taxation as well as otherwise.”The judgment goes on to say that the Court has repeatedly heard that “the power to tax is the power to destroy.”It is also pointed out that for one hundred and twenty years there was but a single real attempt to tax the judges in respect of their compensation. Mr. Justice Holmes in a brief judgment accepts the view of the majority that the exemption of their salaries from diminution is intended to secure the independence of judges on the ground, as it was put by Hamilton in “The Federalist,” that “a power over a man’s subsistence amounts to a power over his will.””That,” he says, “is a very good reason for preventing attempts to deal with a judge’s salary as such but seems to me no reason for exonerating him from the ordinary duties of a citizen which he shares with all others. To require a man to pay taxes cannot possibly be made an instrument to attack his independence as a judge. I see nothing in the purpose of this clause of the Constitution to indicate that judges were to be a privileged class free from bearing their share of the cost of the institutions upon which their wellbeing if not their life depends. I see equally little in the letter of the Clause to indicate the intent supposed.”
The judgment of the Court was followed and applied in the case of Miles v. Graham (1). It is somewhat strange that while Brandeis J. dissented Holmes J. did not. In the argument in Krause’s Case (2), referred to later, it was stated that Holmes J. changed his mind later. Reference was there made to a case which it was suggested supports this view which was not cited to us, Gillespie v. State of Oklahoma (3).
In O’Malley v. Woodrough (4) the question again arose. As already stated, although it did not expressly purport to do so the judgment of the Court in effect reversed the decision in Evans v. Gore (5). Of the members of the Court who decided the latter case only Brandeis J. had taken part in both the earlier cases. Butler J. had taken part in Miles v. Graham (1). He was the only dissenting Judge. His is an elaborate judgment which in this contrasts with the very short and in some ways unsatisfactory judgment of the Court which was read by Frankfurter J. He states that the change of view of the Court was largely brought about by the fact that the meaning which Evans v. Gore (5)imputed to history which explains Article III, s. 1, of the Constitution was contrary to the way in which it was read by other English-speaking Courts. “That decision,” it was stated, had “met wide and steadily growing disfavour from legal scholarship and professional opinion. Evans v. Gore (5)itself was rejected by most of the Courts before whom the matter came after that decision.” In a footnote reference is made to Cooper v. Commissioners of Income Tax (6), and to The Judges v. The Attorney-General for Saskatchewan (1).Particular attention is called to the decision in Krause v.Commissioner for Inland Revenue (2). A number of articles from law reviews are also mentioned in another footnote. Apparently the seven members of the Court who formed the majority felt that legal opinion in the United States preferred the reasoning in the judgments in these cases to that of the Court in Evans v. Gore (3). When it came to giving their reasons, however, the Court confined itself to a paraphrase of the passage already cited from the judgment of Holmes J. in Evans v. Gore (3). Butler J. in a dissenting judgment repeats and approves the reasoning in Evans v. Gore (3).He protests against the citation by the Court of the opposing views of English speaking judges as if they were entitled to prevail against the well sustained opinions and deliberate judgment of the Court. He is particularly critical of the”selected gainsaying writings of professors without reference to the reasons upon which they rest.” “The Clause in question is plain,” he adds, “no exception is expressed, none may be implied. Its unqualified command should be given effect.”
In Krause’s Case (2) Evans v. Gore (3) had been very strongly relied upon by the appellant. The argument was that it should be followed firstly because of the soundness of the reasoning on which it rests and secondly because the Imperial Parliament having obviously taken the language from the American Constitution must have intended the language to bear such meaning as the American Courts gave it. This latter argument was not urged before this Court and would not have any force in view of the change of opinion shown in O’Malley v. Woodrough (4). Stratford J.A. took the view that he was not bound by Evans v. Gore (3).He preferred the reasoning of Holmes J. which he cites, adding to the passage cited from that judgment his own view that “it is indeed difficult to appreciate in what manner a judge’s independence of action is attacked by his having to contribute with all other citizens of the Union towards the maintenance of good order and government of the State in which he lives. . . . The prohibition is directed against the diminution of the salaries of judges as such and cannot be construed to protect him from the incidence of a tax of general applicability.” Villiers A. J. A., who agreed, took the view that income tax was a personal tax, that it was an expense, and that a judge’s remuneration was paid to him to meet his expenses, one of which is income tax.

Undoubtedly it was the reasoning in this case which persuaded the Court in O’Malley v. Woodrough (1) to reverse, as it must be taken to have done, the decision in Evans v.Gore (2). No attempt has since been made in the United States to reinstate this latter decision.
When the American Constitution was framed the raising of revenue by means of a tax on personal income was unknown. The position was very different here in 1922 when the Constitution of the Irish Free State was drafted. Not alone had income tax been long a recognised method of raising revenue but judges’ salaries had all along been subject to it. While it may be said that there was no fundamental law which controlled the English legislature and prohibited the diminution of judges’ salaries it is to be remembered that the independence of the judiciary had long been recognised as essential to the protection of liberty in England and that the guarantee of this independence in the Act of Succession had been faithfully honoured. It had never been suggested in England that the imposition of a tax on judges’ salaries took away this independence. If those who drafted Article 68 thought otherwise it would surely have occurred to them expressly to exempt judges’ salaries from income tax. It must also be remembered that the judges down to the year 1950 paid the tax uncomplainingly and that Kennedy C.J. admitted that judges were not exempt. While this would not avail as an argument if the language of Article 68 was plain and only capable of the meaning attributed to it by the appellant it gives support to the view that the language of the Article is not plain or unambiguous.
In 1950, the judges, through me, put forward the claim that the imposition of a tax on the salaries of judges was prohibited by the Constitution. The question has now been fully argued and I am satisfied that the claim cannot be sustained. If we hold otherwise, we should be the only Court which so interprets language similar to that used in Article 68. Such a consideration should not be decisive and strictly speaking should not influence the Court. There is no doubt, however, that the weight of authority in the United States and in the countries of the British Commonwealth where a similar question has arisen is altogether against such an interpretation.
I accept the reasoning of Holmes J. in Evans v. Gore (2)applied by Stratford J. A. to the provisions of ss. 100 and 101 of the South Africa Act, 1900, and apply it to Article 68. The prohibition in the Article must be read in the context of the Article as a whole. The purpose of the Article is to safeguard the independence of judges. To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack upon his independence.
In my opinion this appeal should be dismissed.

LAVERY J .:
The plaintiff, as executrix of her husband, the late Mr. Justice O’Byrne, brings this action claiming a declaration that the diminution of the remuneration of the late Judge as a Judge of the High Court and later of the Supreme Court under the guise of deduction for alleged liability for income tax, super-tax and sur-tax was illegal and contrary to law and the provisions of Article 68 of the Constitution of 1922 and of Articles 50 and 35, 5, of the Constitution.
She claims an account of the sums so deducted and paid and payment of the amount found due.
It is necessary to explain that the High Court and Supreme Court still established are the Courts established by the Constitution of 1922 and that the issue raised is to be determined under the provisions of that Constitution continued in operation by the Constitution until Courts are established under the Constitution which has not been done.
Article 68 dealing with the appointment and tenure of judges having provided that the remuneration of the judges shall be prescribed by law provides:”Such remuneration may not be diminished during their continuance in office.”
The issue is whether this provision prohibits the imposition of income tax, super-tax and sur-tax on the remuneration of a judge. In fact the late Judge’s salary was at all times subjected to deduction of income tax before payment and super-tax and sur-tax was at all times paid by him. The plaintiff seeks to recover the amounts so deducted and paid.
If there ever was a problem calling for a broad approach, this is such a one. Its solution depends on the construction to be given to a short and apparently simple sentence in the fundamental law of the State.
It is not appropriate, in my opinion, to approach the questionat least in the first instanceby examining the history of British institutionsparticularly of the Courts in Ireland or Great Britain or examining a multitude of cases depending for their decision on the particular laws under which the Courts in question were constituted.
I may refer to the words of Murnaghan J. in the case of In re Tilson, Infants (1). The circumstances in that case were different, but the principle stated appears appropriate. The learned Judge said:”The archaic law of England rapidly disintegrating under modern conditions need not be a guide for the fundamental principles of a modern state. It is not a proper method of construing a new constitution of a modern state to make an approach in the light of legal survivals of an earlier law.”
The Constitution of the Irish Free Statewhich I refer to as the Constitution of 1922established for the State new institutions which were not derived from British precedents, but on the contrary were newly-built and involved the replacement of existing institutions and the repudiation of the idea that these new institutions were similar to or to be regarded as successors to the British institutions. It is demonstrable that the founders of the State and the framers of the Constitution were inspired by the same ideas which actuated the founders of the United States of America which are enshrined in the Declaration of Independence and in the Constitution of the United States. I shall develop this later and refer to the corresponding provisions of that Constitution.
The Constitution of 1922 proceeded in some degree on the basis of the idea of the separation of powersimperfectly, it is true, so far as the executive and legislative powers were concerned, but definitely in so far as the separation of the judicial power was concerned. Articles 64 to 70 make this abundantly clear. I quote:
“Article 65.The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution. In all cases in which such matters shall come into question, the High Court alone shall exercise original jurisdiction.”
“Article 66.The Supreme Court of the Irish Free State (Saorstat Eireann ) shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever . . .”
“Article 68.The judges of the Supreme Court and of the High Court . . . shall not be removed except for stated misbehaviour or incapacity, and then only by resolutions passed by both Dáil Éireann and Seanad Éireann . . .”The provision in Articles 65 and 66 that the Courts have jurisdiction to pronounce on the “validity of any law” should be noted. This provision has been extended by Article 26 of the Constitution requiring the Supreme Court to pronounce on the validity of a Bill passed by the Oireachtas referred to it by the President.
(Article 68.) “Such remuneration may not be diminished during their continuance in office.”
“Article 69.All judges shall be independent in the exercise of their functions, and subject only to the Constitution and the law. A judge shall not be eligible to sit in the Oireachtas, and shall not hold any other office or position of emolument.”
One idea emergesthat the judicial power of the State should be vested in judges set apart in many important ways from the life of the community and denied important civil rights in order that they should be independent in the exercise of their functions.
Apart from specific prohibitions barring a judge from participating in the ordinary activities of a citizen, judges have to recognise many limitations both in their public and private lives. For example, they have effectively to surrender the right to practise their profession should they cease to be judges, either by removal or retirement: see the case, In re the Solicitors’ Act and Sir James O’Connor (1).
What forces might be anticipated as likely to threaten judicial independence? Apart from violence, which may be left out of account as violence would threaten, not the judicial power only, but also the existence of the State, the danger of interference with independence is obviously from the executive and legislative organs of government. History not only our ownbut all history teaches that such a danger can be very real.
As the independence is declared, it is to be expected that it would be secured and protected. As has been said, the judicial power is the weakest of the three organs of government, as it holds neither the sword nor the purse.
It has also been recognised that in a limited written constitutionthe word, “rigid,” has been usedprovisions to secure the independence of the judicial power are to be expected. This is perhaps most eloquently and forcefully stated by Alexander Hamilton in “The Federalist”when explaining the reasons for and the purpose of Article III, s. 1 (which corresponds to the provisions of the Constitution of 1922 now in question):”The Executive not only dispenses the honours, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment . . .”
“This simple view of the matter . . . proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks . . .”
“The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing . . .” [“The Federalist,” No. 78.]
“Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. . . . In the general course of human nature, a power over a man’s subsistence amounts to a power over his will. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges, but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. . . . This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.” [“The Federalist,” No. 79.]
The question is whether the Constitution of 1922 has observed these principles? If it has not, then its grandiloquent phraseology is a mockery. The Constitution of 1922 is to be construed as a statute would be, subject to the proviso that being properly expressed in general words having regard to its character as the fundamental law, a broader meaning might be legitimately given to its provisions than might be given to an Act of Parliament. There is no pre-existing law or statutes in pari materia to be considered.
The remuneration of a judge is not to be diminished during his continuance in office. If by Act of the Legislature on the motion of the Executive, a substantial part of the salary is withheld and a further charge is imposed on that which is paid, has the remuneration been diminished? I confess I am wholly unable to see how it can be thought that it has not been. And it is done by an Act of the Legislature done annually and enduring for a year only unless repeated. And the amount of the deductions so made vary from year to year, nearly always in an upward direction. Income tax, super-tax and sur-tax (I shall refer hereafter to income tax as including super-tax and sur-tax) are imposed annually and for the particular year by the Finance Act of the year. The Income Tax Act, 1918, s. 1, provides:”Where any Act enacts that income tax shall be charged for any year at any rate, the tax at that rate shall be charged for that year in respect of all property, profits, or gains respectively described or comprised in the schedules marked A, B, C, D and E, contained in the First Schedule to this Act and in accordance with the Rules respectively applicable to those Schedules.”
A typical Finance Act may be quoted to make the point clear. Finance Act, 1932, Part 1, s. 1:”(1) Income tax shall be charged for the year beginning on the 6th day of April, 1932, at the rate of five shillings in the pound.”
Sub-sect. 2 similarly provides for sur-tax.
Sub-sect. 3 applies the several statutory and other provisions which were in force during the previous year. Thus are the provisions of the Income Tax Act, 1918, as amended and added to, brought into force for the particular year.
If this operation applies to judicial salaries, such salaries are thereby diminished.
I cannot see that it is possible to doubt this and the only question then remaining for consideration is whether a particular manner of diminutionnamely, by taxationis to be held to restrict the generality of the provision.
Schedule E of the Income Tax Act, 1918, provides that tax under this Schedule shall be charged in respect of every public office or employment “of profit . . . for every twenty shillings of the annual amount thereof.”
Rule 6 of the Rules applicable to Schedule E provides that”the tax shall be paid in respect of all public offices . . . within Saorstat Eireann (by adaptation) . . . namely:

(b) Offices belonging to any court of justice . . .
(k) All other public offices, or employments of profit which are of a public nature.”
These provisions would impose the tax on judicial salaries. They must be read in the light of Article 73 of the Constitution of 1922:”Subject to this Constitution and to the extent to which they are not inconsistent therewith the laws in force in the Irish Free State at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed.”
The question is whether these provisions of the Income Tax Act, 1918, in so far as they purport to impose income tax on judicial salaries are inconsistent with the Constitution. As a simple question of construction of simple words, in my opinion, they are inconsistent.
I should again point out that judges appointed under the Constitution are not successors of the judges of the British régime nor are the courts established by the Constitution successors of the British courts in Ireland. The courts and judges represent a new departure constituted under different ideas. There is no justification, in my opinion, for referring to British precedents. So far from being founded on British precedents or recognising British forms the Constitution of 1922 repudiated deliberately and consciously these institutions.
Having shown that the Constitution of 1922, and indeed the Constitution in so far as the judicial power is concerned, is based on the Constitution of the United States, it is instructive to quote a recent work on “American Constitutional Law” by Bernard Schwartz, Professor of Law in New York University, published by the Cambridge University Press, 1955, with a foreword by Professor A. L. Goodhart, Master of University College, Oxford. Dr. Schwartz writes (Ch. V, at p. 125):”Ever since de Tocqueville, outside observers have emphasised the primordial role of the judge in American society. Nor is this role based exclusively upon the fact that the Constitution of the United States, unlike that in Britain, is a written instrument. Most of the countries of Continental Europe have written constitutions; yet in none of them has the judge attained anything like the status of his American confrère. From a practical point of view, the situation in such Continental countries is basically like that in Britain because of the lack in their system of any effective judicial control of the constitutionality of the laws enacted by the Legislature. The restrictions placed upon the Legislature under most Continental constitutions are not, in reality, laws since they are not rules which in the last resort will be enforced by the Courts. Their true character is that of maxims of political morality, which have more a moral than a legal basis.
The Continental experience shows that a constitution which cannot be judicially enforced contains but empty words. It is the failure of Continental courts to assert a power of review over legislative and executive acts that has made most European constitutions mere paper instruments. The assertion by the American Courts of such a power of review ensures that the Federal Constitution does not suffer a similar fate. It is thus not the existence alone of a written organic instrument which makes the constitutional role of the judge in the United States of greater consequence than it is in Britain. It is rather the fact that the American judiciary is looked upon as one of the three co-ordinate branches of the Federal Government, not as dependent upon the Legislature or the executive, that has enabled it to assert the power of review which so sharply differentiates the American constitutional system from those which have prevailed in Britain and the Continent. ‘The judiciary,’ declares a leading American judge, ‘owes its place in American government in large measure to its having been established in our federal and state constitutions in accordance with the doctrine of separation of powers as an independent, co-ordinate branch of government, and also in part to its being so often called on (in contrast with the English and French judiciary, though for different reasons in each of these countries) to decide what is the ‘supreme law of the land’ and thus on occasion to override legislative or executive action. Because of this high responsibility the independence of the judiciary from both the legislative and executive branches is the keystone of American constitutional government.'”
These words can be applied without alteration to the position of the judges under our Constitution. I do not think this can be disputed and I adopt Dr. Schwartz’s words as expressing my own view, put better and more forcibly and perhaps with more authority than I could do.
Passing reference might also usefully be made to the recent decision of the House of Lords in the case of The Attorney-General v. Prince Ernest Augustus of Hanover (1)dealing with the construction of the Statute, 4 Anne, c. 4, 1705, entitled “An Act for the naturalization of the most Excellent Princess Sophia Electress and Dowager Duchess of Hanover and the issue of her body.”
The Statute 4 Anne, c. 4, enacted that “the said Princess (Princess Sophia Electress of Hanover) . . . and the issue of
her body and all persons lineally descended from her born or hereafter to be born be and shall be . . . deemed natural born subjects of this Kingdom.” The submissions of the Attorney-General as set out by Viscount Simonds were that the generality of those words must be restricted to persons born in the lifetime of Queen Anne, such a restriction being imposed as a matter of construction of the Statute by a consideration of the context in which the words were found. And by “context” he meant “both the historical and political background to which I have referred” (I am quoting) “and the state of the relevant law as well as the verbal context of the Act itself, including its preamble.”
Viscount Simonds substantially accepted this proposition, but having explained that he could not say that in 1705 Parliament would have seen any manifest absurdity in enacting what in the result would lead to most of the Royal families of Europe being British subjects (and I might add a very great number of other persons also), he went on to say:”I reject therefore the argument in favour of restricting the meaning of the enacting words so far as it is based on any other consideration than that of the words of the Statute itself.”
Before passing from this decision, reference might be made to the fact that an Act of the fourth year of Geo. 3 naturalised as a British subject the then Prince of Brunswick Luneberg. This prince was a lineal descendant of the Princess Sophia and the Act was unnecessary if the construction of the Act of 4 Anne contended for on behalf of Prince Ernest Augustus was right because the prince was already a British subject.
Viscount Simonds observes that the Attorney-General attached “a modest weight” to the fact that this Act was passed and he said:”But I cannot allow this Act to weigh with me at all.”
This refusal to accept a legislative interpretation of the earlier Act is in contrast with the submission made in the present case that the late Judge and other judges having accepted liability to tax assists in the construction of the Constitution.
In the present case involving the construction of the fundamental law of the State, this principle of construction has added force.
It has been suggested that those who enacted the Constitution did not intend to confer exemption from tax on the remuneration of judges. I confess I cannot see how this is made out on the evidence, but assuming it to be so, in may opinion this consideration is inadmissible in construing the Constitution of 1922 and any evidence offered to support it should be excluded.
It is not material what the Legislature intended; the question is what does the Statute mean, construed on a consideration of its wording. No matter what was intended, it cannot be given effect to unless the intention is expressed by apt words. In Hilder and Ors. v. Dexter (1), Lord Halsbury L.C. said, at p. 477:”My Lords, I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended though perhaps it was not done.”
The italics are mine. As the Lord Chancellor had been responsible for the drafting of the statute in question in the case he abstained from giving judgment. If a judge who knows what was intended should not give effect to such intention it seems a fortiori that evidence of the actual intention as distinct from the expressed intention is inadmissible. There are many authorities: see Maxwell on Statutes, 7th ed., at p. 23; see the interesting case in the Year Book of 33 Edw. 7, Michaelmas Term (Rolls Ed.) 82, where Hengham C.J. said to counsel:”Ne glosez point le Statut nous le savons mieux que vous qar nous le feames.” That was in A.D. 1304, but is, in my opinion, not the law now, and I hope it is not to be so declared.
This Court must “gloss” the statute even if it knows the actual intention of the Constituent Assembly. It, in fact, does not know the actual intention of the Assembly or of any individual members of it and cannot be instructed on it.
Reference should also be made to McGarry v. Spencer (2).Stated as shortly as possible, Mr. Spencer, the taxpayer, having received assurances in writing from the Inspector of Taxes after he had consulted his authorities, that if he expended very considerable capital in building greenhouses and used them for tomato growing, he would be assessed for income tax under Schedule B of the Income Tax Act, 1918, on the annual value of the property and not under Schedule D or under the rules of Schedule D on the actual amount of the profits and gains.

This assurance was given in accordance with the practice of the Revenue Commissioners since the Act of 1918, and indeed before it, that nursery gardens were so assessed and taxed. The history is that the Income Tax Act, 1842, which did not apply to Ireland, provided that nursery gardens should be assessed under Schedule B, but according to the rules of Schedule D.
This provision of the Act of 1842 was reproduced in the consolidating Act of 1918 as rule 8 of Schedule B. From 1918 the Revenue Commissioners acted on the basis that the rule did not apply in Ireland by reason of its origin and on the special provisions of the Act of 1918 adapting the Act for Ireland. This view was acted on for nearly thirty years and actually in Shannon and Armstrong on Income Tax the rule is not printed, but a note states that it does not apply to Ireland. Mr. W. G. Shannon was the Revenue Solicitor and Mr. Armstrong a counsel of very great experience on income tax law.
There can be no doubt that the actual intention of the framers of the Act of 1918 was that the rule should not apply in Ireland.
Mr. Spencer, acting on the assurance given him, spent his capital in building the greenhouse and carried on the business. For some years he was assessed as promised. He made considerable profits and it may be that this attracted the attention of the Revenue Commissioners. Anyhow, they proceeded to raise assessments on the actual gains and profits on the basis of the rules of Schedule D, claiming to apply rule 8 of the Rules applicable to Schedule B.
The taxpayer appealed to the Special Commissioner who decided in his favour and the Revenue Commissioners required him to state a case. This case came before the High Court and thence by appeal to the Supreme Court. In neither Court was the taxpayer permitted to rely on or even to refer to the facts I have set out. The intention of the Legislature was ignored as completely irrelevant, the issue depending on the construction of the Statute. Neither the High Court nor the Supreme Court even refer to the matter in their judgments, treating it as clear. The assessments were confirmed and the altered practice has been carried on since, contrary to the clearly demonstrable intention of the Legislature when enacting the Statute, but rested on the construction given to the words used.
The Supreme Court in the U.S.A. in O’Malley v.Woodrough (1) also ignored the established practice of over a hundred years (not to speak of decisions of its own) and held the salaries of judges subject to income tax.
So far I have considered the question as one of construction of the words used. If I am right in this there is no need to go further. But it is said that the words are ambiguous and capable of more than one meaning. If this be so, then it is necessary to consider surrounding circumstances at the date of the enactment. To a certain extent in stating the nature of the problem I have already done this.
If one is to proceed, the outstanding feature is that the source of the words in question can be definitely identified. There can be no doubt that they are derived from Article III, s. 1, of the Constitution of the United States which declares:”The Judges, both of the Supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
From the establishment of the United States this clause was read as excepting from taxation the compensation of judges. I quote Van Devanter J. delivering the opinion of the Court in Evans v. Gore (1), at p. 257:”No attempt was made to tax the compensation of federal Judges prior to 1862.”
Under a statute of that year an attempt was made to tax the compensation of judges. This was resisted by Chief Justice Taney as unconstitutional but the taxation was proceeded with. In 1869 the Attorney-General (afterwards Judge Hoar) advised that the taxation was unconstitutional. It was discontinued and the tax collected between 1862 and 1869 repaid. No further attempt to tax the judges was made till 1919 and the matter eventually reached the Supreme Court in the case of Evans v. Gore (1). The Court held the tax unconstitutional, Van Devanter J. delivering the opinion of the Court, Holmes J. and Brandeis J. dissenting.
I refer to the judgment of Van Devanter J. for the history of the matter and for an eloquent and, to me, convincing statement of the reasons for the view of the Court.
It is surely more than a coincidence that this decision was handed down on the 1st June, 1920just over two years before the adoption in our Constitution of the exact provision interpreted.
I consider it unnecessary to attempt to summarise the judgment of Van Devanter J. I could not do it adequately and with respect and admiration I adopt it.
The dissenting judgment of Holmes J. has been relied on as affording reasons said to be convincing why under the American Constitution the clause in question did not protect the compensation of judges from liability for tax. It is therefore necessary to examine it closely.
The learned Judge based his opinion on two distinct reasons. First, that the tax would have been valid under the original Constitution, and second, that if that is not so, it was made lawful by the 16th Amendment. It is unnecessary to consider the second reason as the Constitution of 1922 has no provision similar to the 16th Amendment. The learned Judge said:”In the first place I think the clause protecting the compensation of judges has no reference to a case like this. The exemption of salaries from diminution is intended to secure the independence of judges on the ground as it was put by Hamilton in ‘The Federalist’ (No. 74) that ‘a power over a man’s subsistence amounts to a power over his will.’
That is a very good reason for preventing attempts to deal with a judge’s salary as such, but it seems to me no reason for exonerating him from the ordinary duties of a citizen which he shares with all others. To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge. I see nothing to indicate that the judges were to be a privileged class free from bearing their share of the cost of the institutions upon which their well being if not their life depends.”
This is based on the proposition that income tax is what has been elsewhere described as “a general non-discriminatory tax” which is “one of the ordinary duties of a citizen which he (a judge) shares with all others.”
I propose later to demonstrate that whatever may have been the position in the United States of America, income tax in this country is not of this character. Holmes J. goes on:”I see equally little in the letter of the clause to indicate the intent supposed. The tax on net incomes is a tax on the balance of a mutual account in which there always are some and may be many items on both sides. Obviously, there is some point at which the immunity of a judge’s salary stops, or to put it in the language of the clause a point at which it could not be said that his compensation was diminished by a charge.”
Accepting the idea of a mutual account, surely in the taking of any such account the items to be brought into the account must be assessed according to their nature and incidents. If this is not so a tax imposed on judges alone should equally be disregarded because, according to the judge, the account “cannot be affected by an inquiry into the source from which the items more or less remotely are derived.”
Moreover, this idea of a mutual account seems to beg the question. If the salary is exempt from tax it cannot be brought into the account. To bring it in, assumes its liability to tax. The Judge goes on:”If he (the judge) bought a house the fact that a part or the whole of the price had been paid from his compensation as judge would not exempt the house. So if he bought bonds. Yet in such cases the advantage of his salary would be diminished. . . . At some point I repeat money received as salary loses its specific character as such. Money held in trust loses its identity by being mingled with the general funds of the owner. I see no reason why the same should not be true of a salary.”
Candidly, I find it difficult to treat this reasoning seriously. Holmes J. was a very eminent judge, but even Homer nods and it is not surprising that the learned Judgeexpressly, as I thinkrecognised that his decision could not be supported when he concurred in the decision in the later case of Miles v. Graham (1) though his colleague in both cases, Brandeis J., maintained his simple dissent without giving any reasons on either occasion.
The reasoning would apply equally if the issue were the legality of a tax expressly imposed on judges. It was never contended that the spending by a judge of his salary in the purchase of a house or bonds or for that matter on tea or sugar or anything else should confer exemption. Such an expenditure does not “diminish” the salary; it is the application of the salary to the purposes for which it is paid. It may be a defect of understanding on my part, but with all respect, the argument seems to me to be completely absurd. The Judge goes on:”But I do not think that the result could be avoided by keeping the salary distinct. I think the moment the salary is received, whether kept distinct or not, it becomes part of the general income of the owner and is mingled with the rest, in theory of law, as an item in the mutual account with the United States.”
I have already explained how the idea of the mutual account strikes me.
In any event, though it is unnecessary to rest on the point, under the provisions of the Income Tax Act, 1918, if they apply, a salary such as a judge’s does not reach him at all until it has suffered diminution by deduction of tax. If a judge has other income, say from investments taxable under Schedule D, or from property taxable under Schedules A and B, he is separately assessed in respect of such income. A judge may have income admittedly tax free (e.g., a wound disablement or disability pension on account of military serviceor profits of farming in excess of the liability under Schedule B): I shall deal more fully later with income which is tax free. Such income is not taken into the mutual account, but if it be for any purpose, it is surely not subjected to tax when so included.
In my opinion the reasoning of the learned Judge is unsound and there is good reason to think that on consideration he thought so, too.
The decision in Evans v. Gore (1) was approved in Miles v.Graham (2)Holmes J. concurring. There were special features in that case which it was claimed distinguished it from Evans v. Gore (1) but the Court held otherwise. The question again reached the Supreme Court in O’Malley v.Woodrough (3). The decision in Evans v. Gore (1) was not challenged, but later statutes purporting expressly to tax the compensation of judges appointed after their enactment were claimed to be constitutional. Frankfurter J. delivered the opinion of the Court, Butler J. dissenting. This judgment must also be examined as it is relied on. The assessment of tax in that case was under the Revenue Act, 1936, which”merely carried forward the provisions of the Act of 1932″(i.e. the Revenue Act, 1932) for the inclusion of compensation as subject to tax of judges of Courts of the United States taking office after the 6th June, 1932. Judge Woodrough was appointed on the 12th April, 1933. Frankfurter J. said, at p. 279:”For it was the Act of 1932 that gave notice to all judges thereafter to be appointed of the newCongressional policy to include the judicial salaries of such judges in the assessment of income taxes.” (The italics are mine.)
It was held that the salary was subject to tax, but the decision is clearly limited to the application of the Act of 1932 and later Acts confirming it. Frankfurter J., at p. 281 said:”Having regard to these circumstances” (I shall deal in a moment with the circumstances he was referring to), “the question immediately before us is whether Congress exceeded its constitutional power in providing that U.S. judges appointed after the Revenue Act, 1932, shall not enjoy immunity from the incidents of taxation to which everyone within the defined classes of income is subject. Thereby, of course, Congress has committed itself to the position that a non-discriminatory tax laid generally on net income is not, when applied to the income of a federal judge, a diminution of his salary within the prohibition of Article III, s. 1, of the Constitution. To suggest that it makes inroads upon the independence of judges who took office after” (the italics are mine) “Congress had thus charged them with the common duties of citizenship, by making them bear theiraliquot” (the italics are mine) “share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguards of Article III, s. 1.” The Judge concludes:”But to the extent that what the Court now says is inconsistent with what was said in Miles v. Graham (1), the latter cannot survive.”
The judge whose tax liability was in issue in Miles v.Graham (1) belonged to a class upon whom an Act of 1918 had expressly imposed income tax on the salary before the time of his appointment. The Court had held this inoperative following Evans v. Gore (2) and this is now reversed. But the Court baulked at reversing Evans v. Gore (2).
It is stated in the judgment of Frankfurter J. that Congress by s. 3 of the Public Salary Tax Act, 1939, amended the Act of 1932 so as to make it applicable to “Judges of Courts of the United States who took office on or before June 6, 1932.”The Judge observes:”That section however, is not now before us.”
So far as has been shown, this Statute never came before the Supreme Court or any other Court, so the decision in Evans v. Gore (2) remained the law as declared by the Supreme Court. No doubt with the passage of time the number of judges to whom it could apply is now smallif indeed any such judge survives.
While this is the decision in O’Malley v. Woodrough (3),it does appear that much of the reasoning of Frankfurter J. would, if accepted, destroy the conclusion reached in Evans v. Gore (2).
I should therefore deal with it. His reasoning strikes me as strange. The Judge said:”By means of s. 22 of the Revenue Act of 1932, Congress sought to avoid, at least in part, the consequences of Evans v. Gore (2). That case, decided on June 1, 1920, ruled for the first time that a provision requiring the compensation received by the Judges of the United States to be included in the ‘gross income’ from which the net income is to be computed, although merely part of a taxing measure of general, non-discriminatory application to all earners of incomes, is contrary to Article III, section 1, of the Constitution which provides that the ‘compensation’ of the ‘Judges’ ‘shall not be diminished during their Continuance in Office.’ See also the separate opinion of Mr. Justice Field in Pollock v.Farmers’ Loan and Trust Co . (1). To be sure, in a letter to Secretary Chase, Chief Justice Taney expressed similar views. In doing so, he merely gave his extra-judicial opinion, asserting at the same time that the question could not be adjudicated. Chief Justice Taney’s vigorous views were shared by Attorney-General Hoar. Thereafter both the Treasury Department and Congress acted upon this construction of the Constitution.” The Judge says that the case ( Evans v. Gore (2)) “ruled for the first time” that judicial salaries were exempt from what he calls “a taxing measure of general non-discriminatory application to all earners of income.” He does mention the views of Chief Justice Taney in 1862 and of Attorney-General Hoar in 1869 and that these views were accepted by the Treasury and Congress. But he dismisses these views as “extra-judicial”and apparently considers them of no weight. With an inconsistency which I confess amazes me, he proceeds:”However, the meaning which Evans v. Gore (2) imputed to the history which explains Article III, section 1, was contrary to the way in which it was read by other English-speaking Courts. The decision met wide and steadily growing disfavor from legal scholarship and professional opinion. Evans v. Gore (2) itself was rejected by most of the courts before whom the matter came after that decision.”
He ignores not only Taney C.J. and Attorney-General Hoar but also the writings of Alexander Hamilton in “The Federalist,” the opinion of Mr. Justice Story, of Chief Justice John Marshall and the other opinions set forth so fully in the judgment of Butler J.
I doubt whether it is a principle of United States law that “legal scholarship and professional opinion” can alter or amend the lawor that “growing disfavor” with a decision can in course of time set it aside. It certainly is not the law of this country. I doubt also if the decisions of Australian or South African Courts can avoid in the United States a decision of the Supreme Court. To be just, Frankfurter J. does not assert these propositions, but these are the circumstances “having regard” to which he feels able to hold the Act of 1932 applicable to certain judges while leaving, as I read his judgment, the decision in Evans v. Gore (2) still applicable in the cases of judges to whom the statute of 1932 is not applicable.

In my opinion the reasoning of Holmes J. and of Frankfurter J. cannot prevail against that of Van Devanter J., delivering the opinion of the Court in Evans v. Gore (1),and of Butler J., dissenting in an eloquent and closely reasoned judgment in O’Malley v. Woodrough (2).
It is difficult to summarise these judgmentsevery word of them is applicable in my opinion to the present case.
I would like to adopt these judgments expressing as they do more eloquently than I could hope to do the view which commends itself to me. I have in effect set out the major points in my own words.
I proceed to examine the question whether income tax under our law is a general non-discriminatory tax in the sense of the words used by Holmes J. and Frankfurter J.
It is suggested that a tax is of this character so far as judges’ salaries are concerned if it does not discriminate against the judges as such. That contemplates, I suppose, a tax imposed on judges’ salaries alone or a tax imposed on judges’ salaries at a higher rate than the rate on other salaries or income.
If this were what was meant it would scarcely need to be said. I imagine nobody would deny that such a tax was a diminishing of the salary though indeed it would diminish it no more and no less than a general tax. But demonstrably, this was not what these judges meant.
I quote the phrases used by Holmes J.which I have already set out in their context:”The ordinary duties of a citizen which he shares with all others”; “the taxes which all other men have to pay.”
And Frankfurter J. (at p. 281):”The incidences of taxation to which everyone else within the defined classes of income is subject”; “a non-discriminatory tax laid generally on net income”; “the common duties of citizenship . . . to bear their aliquot share of the costs of maintaining the government”; “a taxing measure of general non-discriminatory application to all earners of income.”
It is surely obvious that income tax is not a tax of the character so described.
It is notorious that the burden of this tax falls unequally on incomes.
There are numerous classes of income on which no income tax falls. There are numerous classes of income on which the tax is reduced by the method of assessment or by allowances or otherwise or on which tax is not charged at the standard rate.

There are numerous classes of persons who are entitled to allowances to which other persons are not entitled.
Aware of this, as I imagine every one is, I was still amazed when I looked into the matter to find the extent of these discriminations.
It would be a lengthy task to make a comprehensive list of them. I shall content myself with some examples.
I should point out that the question is not whether these discriminations are improper or ought not to be provided. These are matters for the Oireachtas. It is perhaps unnecessary to say this, but one is so often misunderstood that it is prudent to do so. I am concerned only with the fact that these differences do exist. I proceed to list a few examples:
1, Tax under Schedules A and B of the Income Tax Act, 1918, on property and in respect of the occupation thereof is charged for every twenty shillings of the annual value thereof and not on the profits and gains derived therefrom.
I state this broadly without going into details or exceptions which would be lengthy and it is unnecessary to bring out the point that an occupier of land may be charged for tax on a sum very much less than the income he derives therefrom. He may earn hundreds, perhaps thousands, of pounds and be liable to tax on a fraction of his income.
Moreover any person occupying land for the purposes of husbandry only may elect to be assessed and charged under Schedule D and no doubt would so elect if his income derived from the occupation of the land was less than the assessable value (rule 5 of Schedule B). Such a person has therefore a double protection.
I quote from the Report of the Committee of Inquiry into Taxation on Industry presented to the Minister for Finance on the 28th March, 1956. The Chairman of the Committee was Mr. Justice O Dalaigh and its membership certainly establishes its authority to speak. In para. 194, having explained the method of assessment of income for tax under Schedules A and B, the Report sets out:
“The Schedule B assessment must be based on the original land purchase annuity, if this annuity is lower than the valuation of the holding. Actual farming profits in excess of the Schedule B assessment accrue to the farmer tax-free.”
2, The income of any body of persons established for the purpose of promoting the games of gaelic football, hurling and handball so far as it is applied to such purpose is not subject to tax under Schedule D: Finance Act, 1927 (No. 18), s. 8.
Effectively this means the Gaelic Athletic Association and probably some other bodies.
3, Allowances payable to members of the Oireachtas are exempt from income tax (including super-tax and, now, sur-tax) and are not to be reckoned in computing income for the purposes of the Income Tax Acts: Oireachtas (Payment of Members) (Amendment) Act, 1925, s. 1.
4, Profits derived from fees received for the service by a stallion of mares owned by other persons by a person who is the occupier of land assessed under Schedule B, where the stallion is ordinarily kept on such land, is to be deemed to arise from the occupation of such land.
The Supreme Court decided in Cloughran Stud Farm v.Birch (1) that profits so derived are profits of a trade assessable under Schedule D. This section relieves from this liability.
Effectively, an owner of stallions satisfying the conditions may derive a very large income untaxed as without liability for tax other than under Schedule B which he would bear in any event.
5, Sect. 39 of the Income Tax Act, 1918, exempts from tax under Schedules A, C and D, certain income of the following bodies satisfying certain conditions:
(a) An unregistered friendly society;
(b) A registered trade union;
(c) A savings bank certified under the Savings Bank Act, 1863;
(d) Any savings bank in respect of income of its funds so far as such income is applied in the payment or credit of interest to any depositor;
(e) Societies registered under the Industrial and Provident Societies Act, 1893;
(f) An approved society within the meaning of Part 1 of the National Insurance Act, 1911;
(g) An insurance committee established under Part 1 of the National Insurance Act, 1911.
6, Sect. 37 of the Income Tax Act, 1918, exempts from liability to tax certain income so far as it is applied to charitable purposes only in respect of rents and profits of lands, etc. belonging to any hospital, public school or alms houses. (See also s. 3 of the Finance Act, 1924.)
7, The following items of income are not subject to income tax;
(a) Wounds and disability pensions; Finance Act, 1919, s. 16 extended to all wound pensions and gratituities granted under the Army Pensions Act, 1923. (See s. 3, sub-s. 2, of the Finance Act, 1925, and s. 7 of the Finance Act, 1954.)
(b) Military gratuities and demobilisation pay of Officers of the National Forces or Defence Forces (s. 3, sub-s. 1, of the Finance Act, 1925).
(c) Deferred pay and gratuities credited to the pay account of members of the Defence Forces (s. 3 of the Finance Act, 1945).
(d) Allowances to certain relatives of persons killed during the Rising of April and May, 1916 (s. 8 of the Finance Act, 1954). There are innumerable provisions in the Finance Acts relieving from liability for tax pensions and gratuities. Perhaps I have referred to a sufficient number. Such exemptions would be regarded as just by everyone. I repeat, however, that this is not the issue.
(e) Small incomes exempted from tax (s. 3 of the Finance Act, 1954). The same observation might be made.
8, Profits or gains of an agricultural society from exhibitions or shows if applied solely to the purposes of the society (s. 4 of the Finance Act, 1925).
9, Non-residents and persons not ordinarily resident are exempt from certain tax. (See rule 2 of Schedule C of the Income Tax, 1918).
10, Consuls of foreign States being citizens of such State are exempt from tax in respect of their office (s. 7 of the Finance Act, 1928).
11, Certain income from Post Office Savings Bank deposits and from interest on Saving Certificates.
Where tax is to be charged under Schedule D allowances may be deducted in the computation of the profits and gains for expenses “wholly and exclusively laid out or expended for the purposes of the trade,” and etc. (Rule 2 (3) of Rules applicable to Cases I and II of Schedule D.) Where the tax is charged under Schedule E allowance of expenses is only permissible where the holder of the office is obliged “to expend money wholly, exclusively and necessarily in the performance of the duties of the office.” (Rule 9 of Rules applicable to Schedule E.) An ordinary man might think there was little difference between the two provisions but the decisions of the Courts are said to establish and the practice of the Revenue Commissioners is to disallow expenses under Schedule E which would be allowed under Schedule D. This is in fact a very serious discrimination against salary earners in favour of taxpayers assessed under Schedule D. The Report of the Committee already referred to (1) at para. 199 refers to the “grievances of Schedule E taxpayers”and to the “anomalous position occupied by taxpayers under Schedules A and B.”
On the other hand, land occupied as nurseries or gardens for the sale of produce cannot claim the advantages of Schedule B which occupiers of other lands can claim but are assessable under the Rules of Schedule D, i.e. on the actual profits and gains (Rule 8 of Schedule B. I have already dealt with the case of McGarry v. Spencer (1)).
I have only given examples, but sufficient in my opinion to show that income tax in this State is not such a tax as Holmes J. and Frankfurter J. described as a non-discrimnatory tax, and that therefore the main ground, and indeed the only ground, which I can discover on which they based their opinions has no application here.
It is suggested that if all salary earners bear the same burden under Schedule E there is no discrimination. There are exemptions of persons who would be assessable under Schedule E. Examples are items 3 and 7 in the list I have set out.
It is argued that income tax is a single tax though assessed under different conditions, but if the burden falls more heavily on an income of, say, £1,000, assessed under Schedule E, than on the same income assessed under Schedule A or B, C or D, there is discrimination.
Only a lawyer could find any difficulty on such a point.
I have endeavoured to explain the reasons which lead me to the conclusion that income tax is not a non-discriminatory general tax.
I am supported in my conclusion by the Report of the Committee on Taxation in Industry already referred to. I quote paragraph 209:”It appears that income taxation in Ireland is neither broad nor general in its incidence, and that there is an unequal distribution of the total burden over the different sectors of the community.”
If this is right and if the situation in the United States had been the same when Holmes J. and Frankfurter J., respectively, spoke their opinion they must have come to the opposite conclusion to that which they reached.
In any case no support for the view contrary to that which I have expressed can be gained from their judgments.
There is nothing in the provision of the Constitution raising the question of discrimination. The provision is simply that the remuneration is not to be diminishedand diminished it is and I cannot find anything to restrict the generality of the provision.
In my opinion the plaintiff and appellant has made out her case.

KINGSMILL MOORE J. :
The late Mr. Justice O’Byrne was appointed to be a judge of the High Court in 1926, was elevated to the Supreme Court in 1940, and continued to be a member of that Court till his death in 1954. As judge of the High Court, he was entitled, under the provisions of s. 13 of the Courts of Justice Act, 1924, to receive a “remuneration” of £2,500 yearly, and under the same section his “remuneration” when first elevated to the Supreme Court was £3,000 yearly. By the Courts of Justice Act, 1947, the remuneration of a Supreme Court Judge was raised to £3,450 and by the Courts of Justice Act, 1953, to £3,700.
At no time was the late Judge paid, by draft or otherwise, the full amount of his remuneration as prescribed by these statutes. Instead he was paid the remuneration assigned, less by an amount equivalent to the total sum which would be leviable by way of income tax in respect of such remuneration if that remuneration were properly subject to income tax. He also paid sur-tax, making his returns on the basis that his remuneration as a judge was properly subject to income tax.
Until 1950 he does not appear to have protested, at any rate officially, that his remuneration was not subject to income tax; but in that year he joined with the other judges in making a written submission to the Taoiseach, through the Chief Justice, that, by the terms of the Constitution, the judges were immune from liability to income tax or other tax on their judicial salaries, and I treat all payments made or suffered thenceforward by way of income tax or sur-tax on his judicial salary as having been made subject to such submission.
The plaintiff in the present action is Marjorie O’Byrne, the widow and executrix of the late Judge, and she claims, against the Attorney General and the Minister for Finance a declaration that the deductions from the Judge’s remuneration in respect of an alleged liability to income tax, and assessments to super-tax or sur-tax made on the assumption of such liability, were illegal. She seeks an order for repayment of the amounts deducted as income tax or paid as sur-tax in respect of his judicial remuneration.
The plaintiff’s claim is based on Article 68 of the Constitution of the Irish Free State, and it is admitted by all parties that it is this Article which, by virtue of the transitory provisions in the Constitution of 1937, still governs the position of judges of the High Court and Supreme Court. The relevant portions of the Article run as follows:

“The judges of the Supreme Court and of the High Court . . . shall not be removed except for stated misbehaviour or incapacity, and then only by resolutions passed by both Dáil Éireann and Seanad Éireann . The age of retirement, the remuneration and the pension of such judges on retirement and the declarations to be taken by them on appointment shall be prescribed by law. Such remuneration nay not be diminished during their continuance in office.”
It is contended that the deduction of income tax from the remuneration, and the assessment to sur-tax on the basis that such income tax was properly payable, amount to a”diminution” of the remuneration prescribed by law during the continuance of office of the deceased Judge. Very similar provisions are to be found in other constitutions and constitutional enactments, to three of which I will refer.
The Constitution of the United States, Article III, s. 1, provides:”The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”
The Commonwealth of Australia Act, 1900, by s. 72 of the Constitution, provides:”The justices of the High Court and of the other Courts created by Parliament . . . shall not be removed except by the Governor-General in Council on an address from both houses of Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity, shall receive such remuneration as the Parliament may fix, but the remunerationshall not be diminished during their continuance in office.”
The South Africa Act, 1909, by ss. 100 and 101 provides: Sect. 100:”The Chief Justice of South Africa, the ordinary Judges of Appeal and all other Judges of the Supreme Court to be appointed after the establishment of the Union . . . shall receive such remuneration as Parliament shall prescribe and their remuneration shall not be diminished during their continuance in office.” Sect. 101:”The Chief Justice of South Africa, and other Judges of the Supreme Court of South Africa, shall not be removed from office except by the Governor-General in Council on an address from both houses of Parliament in the same session praying for such removal on the ground of misbehaviour or incapacity.”
The words “shall not be diminished during their continuance in office” are thus common to the Free State Constitution and to the Constitutions of the United States, the Commonwealth of Australia, and the Union of South Africa. In each case they are coupled with a provision that the judges are not to be removed save for misbehaviour or incapacity, and in all the constitutions, except that of the United States, such removal must be initiated by an address or resolution of both houses of the legislature. It is not disputed that all these restrictions are designed for the paramount purpose of securing the complete independence of the judges from influence based on a threat to their continuance in office or their financial position, though Mr. Leonard says that this purpose does not exhaust the objects of the restrictions. Apart from the remarkable literature contemporaneous with the framing of the Constitution of the United States, in which the political basis of that Constitution and the nature of political institutions were analysed with a skill and eloquence never surpassed, and in which prominence is given to the vital necessity of providing for the power and independence of the judiciary we find in the Declaration of Independence, among the”long train of abuses and usurpations” enumerated, that the King of Great Britain “has made judges dependent on his will alone for the tenure of their office and the amount and payment of their salaries.” The apprehensions of the framers of the United States Constitution, based on experience, have been shared and the methods which they adopted to allay such apprehensions have been copied by those who had to draft and enact the subsequent Constitutions which I have mentioned. This is, I think, clear to demonstration.
But both the apprehension and the remedies extend further back in history. Judges of Courts of common law in England and Ireland held their positions at the pleasure of the King and at his pleasure they could be dismissed or transferred to less remunerative offices. Charles II abused his power to secure judges favourable to his views, and in the words of Professor Holdsworth “the appointments and dismissals of judges made by James II were scandalous”(History of English Law, vol. 10, at pp. 415, 416). When William and Mary came to the throne Parliament was not long in seeking a remedy to avoid a recurrence of such abuses and in 1691 presented a bill to provide that judges should hold office “quam diu se bene gesserint” and that their salaries should be fixed once and for all; but the royal assent was refused on the ground that the bill purported to charge the salaries on the hereditary revenue without the King’s previous consent. The rejected provisions found an improbable place nine years afterwards in the Act of Succession. The main object of that Act was to provide that, if William and Princess Ann died childless, the throne should go to the descendants of the Electress Sophia, but the Act went on in s. 3 “for securing our religion, laws and liberties”to lay down certain precautions which were to come into force “after the said limitation shall take effect as aforesaid.”
One such precaution was that “Judges Commissions be made ‘quam diu se bene gesserint,’ and their salaries ascertained and established; but upon the address of both houses of Parliament it may be lawful to remove them.” Here we find the precautions which were to become standard tenure during good behaviour, a fixed and ascertained salary, removal only on the initiative of both houses.
Sixty years afterwards it was thought necessary to reaffirm in somewhat more explicit language these principles. The Act of I Geo. III, c. 23, in its title purports to be an Act for rendering more effectual the provisions in the Act of Settlement relating to the Commissions and salaries of judges. The preamble recites the relevant provisions of the Act of Settlement, and that the King had declared from the throne to both houses that he looked on the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities for the rights and liberties of subjects, and as most conducive to the honour of the throne. The Act purports to be passed in deference to the desires of the King, and it provides by s. 1 that the Commissions of judges for the time being shall be, continue, and remain in full force during their good behaviour, notwithstanding the demise of the King or his successors. Sect. 2 contains a proviso for removal on an address from both Houses. Sect. 3 enacts that such salaries as are settled upon judges for the time being or any of them by Act of Parliament, and also such salaries as have been or shall be granted by the King, his heirs or successors, to any judge or judges, shall in all time coming be paid or payableto every such judge or judges for the time being, so long as the patents of them or any of them respectively shall continue and remain in force. Finally in 1781, six years before the enactment of the Constitution of the United States, an Act, 21 & 22 Geo. III, c. 50, was passed by the Irish Parliament and remains still unrepealed. Its title is”An Act for securing the independency of judges and the impartial administration of justice”: it recites that the independency of judges is essential to the impartial administration of justice and highly conducive to the support of the honour of the Crown and the security of the rights and liberties of the people: and it enacts provisions which are in substance identical with those contained in the English statute of 1760.

I have thought it desirable to emphasise these enactments, ante-dating the Constitution of the United States, because they show that the provisions of that Constitution in regard to judges had been anticipated in every respect, and that the object which was aimed at by this earlier legislation was to secure the independence of judges and the proper administration of justice. Though they do not provide in so many words that the remuneration of judges “may not be diminished during their continuance in office” the same result is achieved by enacting that a salary, once assigned, shall be paid as long as the patents or commissions continue. There is one difference. Whereas both the earlier enactments and the American Constitution provide for fixity of tenure during good behaviour, the American Constitution does not contain a prohibition against removal save on an address from both Houses which is to be found in the Constitution of South Africa and in the Constitution of the Commonwealth of Australia, and which is reproduced in the Constitution of the Free State. It is clear that the framers of the Free State Constitution had before them, considered, and adopted this provision, taking it from some source other than the United States Constitution and presumably from one of the Dominion constitutions to which I have referred.
Before considering the meaning attached to the words,”such remuneration may not be diminished during their continuance in office,” in the various cases which have been cited, it is desirable to consider the meaning of these words apart from authority, as Mr. Leonard asks us to do. Mr. Leonard relied on the principle of construction, laid down in varying phraseology by eminent judges, that where words have a plain meaning they must be construed according to that plain meaning, and must not be given some other meaning by reason of a presumed intention of the Legislature. If the meaning is sufficiently plain and if there is no other interpretation equally open and equally reasonable, this canon must no doubt prevail: but, if the impact of the words on the mind is such as to leave it doubtful which of two meanings the words convey, it is permissible to consider the history and surrounding circumstances of the words and the legislation, and to apply the principles laid down by Coke in Heydon’s Case (1) by asking “what remedy the parliament both resolved and appointed to cure the disease of the Commonwealth” and “the true reason of the remedy.”
It is contended by Mr. Leonard that the plain meaning and the only plain meaning of the words under consideration, is that a judge is to have his salary free from any liability to pay income tax in respect thereof, whether by deduction at the source or otherwise, and that the whole of his salary must be available for him to spend as he likes without any obligation to return any part of it to the State in any form of compulsory tax. I must confess that this meaning of the words would not have occurred to me unless it had been suggested. When it is suggested, I can see that the words may be fairly capable of this meaning. But the meaning which the words conveyed to me when I first read them, and the meaning which still seems to me the most natural, is that a judge’s salary when once assigned to him by law must not be diminished during his continuance in office by a reduction of his salary as such. When I find that other judges in their judgments have attached the same meaning, and that from 1922 to 1950 the salaries of the judges were paid after deduction of income tax without protest from the body of judges, I am constrained to think that the meaning which is urged by Mr. Leonard is certainly not the only meaning, or a meaning so plain as to preclude me from considering any other meaning. If I am at liberty to consider other meanings, I must take into account the history of the legislation, the evil sought to be avoided and the nature of the remedy devised to avoid such evil. All these matters are plain from the titles and preambles to the statutes I have cited. The object was to secure the independence of the judges and the impartial administration of justice. The legislation was for the protection of the people, not for the interests of the judges. A judge who was subject to removal or to have his salary reduced would be under temptation to be subservient to the wishes of those in whose power it was to ensure his removal or reduce his salary. Any discrimination by tax or otherwise against a judge or judges as a body, having the effect of reducing his or their salary would be equally objectionable. But I fail to see how a tax which is non-discriminatory against judges can assail the judicial independence. It is not and cannot be imposed by way of punishment to the judiciary for an assertion of independence. With certain exceptions, it is common to all. It is an unfortunate vicissitude of life from which the judiciary cannot claim to be immune.
Mr. Leonard argues that, over and above the necessity for independence, it is in the interest of the public that judges should have a certain affluence, should be able to maintain a certain position and dignity. It is not necessary to dissent from such an appealing assertion. But the effect which Mr. Leonard desires can be obtained by providing a suitable initial salary, and by increasing it if economic conditions so suggest. It could also be done by relieving the judges from income tax, but the subjecting of the judges to income tax does not prevent any suitable amelioration of their position by increase of salaries.
On an examination of the words of Article 68 I do not find any plain meaning that remuneration is to be paid free of tax, and when I consider the reasons which lie behind this article in the light of constitutional history it appears to me that there is no foundation for the plaintiff’s contention.
The cases cited show a considerable conflict of judicial opinion. Objection is taken by counsel for the plaintiff to the relevancy of two Cooper v. Commissioner of Income Tax for the State of Queensland (1) and Krause v. Commissioner for Inland Revenue (2)on the ground that the constitutional provisions construed in those cases were not fundamental in as much as the Legislature was free to alter or abrogate them at any time. In so far as the effect of legislation, purporting to over-ride, directly or impliedly, the constitutional provisions protecting judges’ salaries from diminution, is concerned, such an objection appears to be well founded. But in so far as the cases deal with the meaning and interpretation of the protective provisions they are of importance as showing the considered opinions of trained and eminent judges.
In Cooper’s Case (1) the protection contained in s. 17 of the Constitution of Queensland Act, 1867, was framed in words which followed the precedent of the 1760 British Act. “Such salaries as are settled upon the judges for the time being by law and also such salaries as shall or may be in future granted by Her Majesty Her Heirs and Successors or otherwise to any future judge or judges of the said Supreme Court, shall in all time coming be paid and payable to every such judge and judges for the time being, so long as the patents or commissions of them or any of them respectively shall continue and remain in force.” I have already stated that in my opinion such a provision does not differ in effect from the more compendious “Such remuneration may not be diminished during their continuance in office.”
Legislation of the Parliament of Queensland purported to subject the salaries of judges to the payment of income tax, despite the Constitution Act, of 1867, and without expressly repealing that provision. The tax was not deducted at the source, but had been assessed on and paid by the plaintiff, who was Chief Justice of Queensland.
All the judges, Griffiths C.J., Barton, O’Connor, Isaacs and Higgins JJ., held that, although the provisions of the Constitution Act could be amended or repealed, this must be done expressly by a statute purporting to amend the Constitution, and not impliedly by inconsistent ordinary legislation. As this had not been done for the purposes of the case they treated the provisions of the Constitution Act as being fundamental and overriding. They then considered the meaning and effect of the words I have quoted, and unanimously concluded that such words did not prohibit the subjection of judicial salaries to income tax. O’Higgins J. would however apparently have been of a different opinion if the tax had been deducted at the source. Griffiths C.J. says, at p. 1416:”I think that the inclusion of a judge’s salary with the rest of his income in an aggregated fund, upon the balance of which, after specified deductions, an income tax is charged in common with the incomes of all other citizens of the State, is different in principle from a direct diminution of his salary quasalary. The power to make such a diminution might obviously be used to impair his independence by the suggestion that, if his decisions did not commend themselves to the Legislature or the Executive Government, the power would be exercised or an attempt would be made to exercise it. The object of the provisions in the Constitution was clearly to prevent such an attack upon judicial independence. But on the whole I do not think that those provisions should be read as extending to a case which does not fall within the mischief, and as to which it is at least doubtful whether it falls within the literal meaning of the words.” Barton J., at p. 1319, says:”My own opinion is that the meaning of the section is plain and free from ambiguity, and that it ought to be construed in its clear English sense. The object of the section on its face is to secure the due payment of the salaries according to the terms on which they are allotted, and as long as the commissions of those entitled to them remain in force. That is what is said, and I think it is all that is meant. In this sense the notion of a reduction (e.g. by statute) is excluded, and, looking at the origin of the provision, and the clear object to be inferred from the words of the Act of Settlement, I have no doubt that the judicial independence was meant to be protected by that and subsequent legislation so far that even a sovereign Parliament would not dream of reducing a judge’s salary during his tenure of office. But the ordinary taxation of the State stands on a different footing. It is imposed on all who come within the area prescribed for taxation, whatever their rank or occupation. It is raised for revenue purposes, and one does not think of a Colonial Treasurer trying to levy a tax on the whole people, yielding many hundreds of thousands of pounds, for the mere purpose of vindictively obtaining a few pounds from half a dozen judges. To reduce the salaries of officiating judges is, or may be, an attack on their independencea punishment for its exercise. To subject them, in common with all their fellow citizens to a general tax, is not likely to be anything of the kind, and it is not in reason to suppose that Parliament in imposing it, has thought of it in that light.”
The views of the other judges were similar in substance.
The next case in order of time, is that on which the plaintiff chiefly relies, Evans v. Gore (1), a decision of the Supreme Court of the United States in which nine judges took part, the opinion of the majority being given by Van Devanter J., Holmes J. delivering a dissenting judgment, and Brandeis J. concurring with Holmes J.
In the United States the provisions of the Constitution were for long treated as exempting the salaries of the judges from liability to taxation, but in 1862, in the financial stringency of the Civil War, a statute, subjecting to tax all civil officers, was construed by the Revenue as applying to judges. Chief Justice Taney protested vigorously on behalf of the judges, and in 1869 Attorney-General Hoar gave an opinion that the tax was invalid as regards them. Thereupon the attempt to tax the salaries of judges ceased, until, in 1919, another Act purported to tax the net income of judges, including the official salary in the computation. Judge Evans, who had been appointed a judge before the passing of the statute in 1919, paid the tax under protest and sued to recover the amount.
Mr. Justice Van Devanter considered the provisions of the Constitution and their purpose. Quoting from Alexander Hamilton in “The Federalist,” No. 78 and No. 79, from Chief Justice John Marshall, from Woodrow Wilson, and from Chief Justice Taney, and reinforcing their eloquence with his own, he laid down in a manner which seems to me impeccable and incontestable the paramount importance to the State of the independence of the judiciary. If a tax were imposed on the salaries of judges of a nature discriminatory against them, such as would menace their independence, it would, in my opinion, be clearly invalid under the wording of the Free State Constitution, and of the Constitution of the United States. But Mr. Justice Van Devanter goes further than this. He holds that any tax which would have the indirect effect of reducing the compensation originally

[1959]
1 I.R. O’Byrne v. Minister for Finance and Attorney General.
Kingsmill Moore J. 68
Supreme Court.
allotted to a judge, so that he should have less money available for his support, even if such a tax was universal and non-discriminatory, would be unconstitutional, and he bases his opinion on two contentions. First that such a tax in effect menaces the judicial independence; second that such a tax thwarts a secondary purpose of the constitutional provision, namely, to attract good and competent men to the bench who, in the words of Chancellor Kent, “in consequence of a certain undiminished support are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station.” Mr. Justice Holmes met the first argument in the following words. “In the first place, I think that the clause protecting the compensation of judges has no reference to a case like this. The exemption of salaries from diminution is intended to secure the independence of the judges, on the ground, as it was put by Hamilton in ‘The Federalist,’ that ‘a power over a man’s subsistence amounts to a power over his will.’ That is a very good reason for preventing attempts to deal with a judge’s salary as such, but seems to me no reason for exonerating him from the ordinary duties of a citizen, which he shares with all others. To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge. I see nothing in the purpose of this clause of the Constitution to indicate that the judges were to be a privileged class free from bearing their share of the cost of institutions upon which their well-being if not their life depends.”
One sentence seems to me to destroy the first argument of Mr. Justice Van Devanter. “To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge.” At first sight there might seem to be an exception to this generality. A judge called on to decide whether a litigant was liable to pay a tax to which the judge, in common with the litigant, was subject, might be tempted to give a decision absolving alike the litigant and himself. But such a temptation would tend to emphasise rather than reduce his independence from the wishes of the Legislature and the executive, which is the independence sought to be preserved.
The answer to Mr. Justice Van Devanter’s second argument I have already outlined, and I shall return to it when considering Krause’s Case (1).
Judge Evans had been appointed before the passing of the 1918-1919 legislation subjecting judges’ salaries to tax. In Miles v. Graham (2) the Supreme Court had to consider the case of Judge Graham, who had been appointed subsequent to the passing of that legislation. The Court, with the exception of Mr. Justice Brandeis, held that the salary of Judge Graham was not subject to the tax. Holmes J. was a member of the Court and did not dissent. Whether he had seen fit to change his opinion as delivered in Evans v.Gore (1), or whether he considered himself bound by the decision of the majority in that case (which is expressed to be the opinion of the Court) I do not know.
In 1929, the case of Krause v. Commissioner for Inland Revenue (2) came before the Supreme Court of South Africa. Sect. 100 of the South Africa Act in so far as it prohibits the reduction of the remuneration of judges is identical in terms with the American Constitution and the Constitution of Saorstat Eireann , but it is not an “entrenched” clause and may be repealed or amended by ordinary legislation. An Act of 1925 was framed in terms wide enough to subject the salaries of judges to income tax, though there was no specific mention of such salaries or of any intention to affect the provisions of s. 100 of the South Africa Act. Wessels J.A. based his judgment on the view that the terms of the Act showed a clear intention that judges’ salaries should be taxed, and that this was sufficient to prevent s. 100 from applying. Stratford J.A., with whom Curlewis J.A. concurred, took different ground. He held that s. 100 of the South Africa Act could not be repealed without a clear expression of intention to do so, and that there was no such clear expression in the taxing Act. He had therefore to decide whether the imposition of income tax on the salaries of judges was a diminution of the compensation of the judges the same question as had arisen in Evans v. Gore (1)and he rejects as unsound the reasoning of the majority in that case. “It is for this Court now to decide for itself whether the imposition of a tax upon incomes arising from a source within the Union is a diminution of a judge’s remuneration within the meaning of the words of s. 100. In arriving at the meaning of the prohibition, it is, of course, a sound principle of construction to have regard to the object that the Legislature had in mind when imposing it. In the present case there is no doubt of the object in view, and it is the same as that of Article III of the American Constitution, which is clearly stated in the majority judgment in Evans v.Gore (1), thus:’These considerations make it very plain, as we think, that the primary object of the prohibition against diminution was . . . to attract good and competent men to the bench and to promote that independence of action and judgment which is essential.’ But having thus alluded to the purpose of the prohibition, this important consideration is entirely disregarded for it is not shown how the imposition of an income tax in any way impairs the independence of a judge, whereas due consideration is given to this purpose in the dissenting judgment of Mr. Justice Holmes.” He then quotes the passage from that judgment which I have already set out, and continues:”It is indeed difficult to appreciate in what manner a judge’s independence of action is attacked by having to contribute, with all other citizens of the Union, towards the maintenance of good order and government of the State in which he lives. The majority judgment, however, is solely based on the conclusion that income tax has the ‘effect’ of diminishing the salary. Now that is only true in the sense that every compulsory expense diminished a man’s salary. And if ultimate effect is to be the test, then a poll tax or a house tax would have that effect, so also a general rise in the cost of living due to the depreciation of currency. The salaries of the judges in Great Britain were very much lessened in buying value by the Government’s action in departing from the gold standard. By such departure their salaries were, in effect, diminished, and that, too, was brought about by the action of the Government which paid them. But the judges suffered with the rest of the community, and it would be fantastic to think that their independence was affected by the general financial policy of the Imperial Government. I can see no reason whatever for the conclusion that by the prohibition the Legislature intended to exempt judges from bearing their share of the cost of the government of the country. The prohibition is directed against the diminution of the salaries of judges as such, and cannot be construed to protect judges from the incidence of a tax of general applicability.”Dr. Villiers A.J.A. agreed with the views of Stratford J.A. “It does not seem to me that a diminution of remuneration takes place when a judge is subjected to a general tax levied to defray the expenses of government, not even if the tax is so calculated as to bear a certain relation to the amount of the taxpayer’s income. . . . It seems to me that the section applies, as pointed out in the judgment of my brother Stratford, merely to a diminution of the judicial salary as such, not to a diminution which results from the operation of the ordinary revenue laws applicable to all persons, whether judges or not.”
It seems to me that the judgment of Stratford J.A. contains the answer, not only to the first, but also to the second reason given for the opinion of the majority in Evans v. Gore (1). No doubt it was part of the object of the constitutional provisions to attract good and competent men to the bench by fixing an adequate salary and giving a guarantee that such salary should not be reduced. But a man, making his choice whether he should leave the Bar and accept judicial preferment or not, could not expect a guarantee, not only that his salary would not be reduced, but that its purchasing power or his real wages would always remain the same. There are certain general vicissitudes which every man must faceinflation of currency, wars with their consequent increase in taxation, complications of exchange, and so on. These strike at all classes. They are indiscriminate. They are part of the hazard of life. Even a judge cannot claim to live in a financial ivory tower, immune from the common lot of humanity. What he can claim is that there should be no discrimination against him as a judge which will worsen his position vis-á-vis the rest of the citizens of the State.
The final case which must be considered is that remarkable palinode of the United States Supreme Court in O’Malley v.Woodrough (2) where by a majority of seven to one the Court overruled Miles v. Graham (3) and, in effect, made Evans v.Gore (1) no longer good law. Judge Woodrough, like Judge Graham, had taken office after the passing of legislation which subjected judges’ salaries to income tax. The majority held he was liable to pay. The opinion of the majority (it is called the opinion of the Court) was given by Frankfurter J. in a somewhat cursory judgment. Evans v. Gore (1) is dismissed in the following words:”However, the meaning which Evans v. Gore (1) imputed to the history which so explains Article III, 1, was contrary to the way in which it was read by other English-speaking Courts. The decision met wide and steadily growing disfavour from legal scholarship and professional opinion. Evans v. Gore (1) was rejected by most of the Courts before whom the matter came after that decision.” Reference is made in footnotes to a number of articles in legal professional journals and to cases, including Cooper’s Case (4) and Krause’s Case (5). The judgment concludes that “to subject them (the judges) to a general tax is merely to recognise that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose constitution and laws they are charged with administering.” Mr. Justice Butler in a vigorous dissenting judgment re-iterates and adopts the views of the majority in Evans v. Gore (1).
I am of opinion that the dissenting judgment of Holmes J. in Evans v. Gore (1), and the judgment of Stratford J.A. and those who concurred with him in Krause’s Case (2), are correct interpretations of the constitutional provisions which those judges were considering and that those provisions are substantially indistinguishable from the provisions of Article 68 of the Saorstat Eireann Constitution which governs the present case. I have, however, found some difficulty in the point raised by O’Higgins J. in Cooper’s Case (3), namely, that the method of collecting the tax by deduction at the source may be a breach of such prohibition. It is admitted that deduction at the source is only a method of collection and that if this method were not adopted there are other equally efficacious, if less convenient, methods available to the Revenue for extracting their due. Indeed, the method of deduction at the source is probably most convenient for the judges as well as for the Revenue. Counsel for the plaintiff did not lay any stress upon the mere method of collection, preferring to base their case on the broader and more fundamental contention that any extraction of income tax was illegal. Not without some doubt I have come to the conclusion that the adoption of the expedient of deduction at the source is not, looking at the substance of the matter, unconstitutional, if the imposition of the tax is not itself unconstitutional. It amounts only to the creation of a credit against an admitted liability.
In the cases to which I have referred, the income tax under consideration is treated as being a “general” tax or a”non-discriminatory” tax. In Eire the income tax, though it may perhaps be regarded as a general tax can hardly be described with accuracy as being non-discriminatory. It is imposed yearly in the Finance Act at a specified rate, and its incidence is determined by the provisions of the Income Tax Act, 1918, as amended by subsequent Finance Acts. It is one tax, but it is assessed in respect of income from different forms of property under five schedules, varying in their methods of assessment and in the allowances which are permitted in arriving at the assessments. It is alleged that as a result of this the burden of the tax falls more heavily on income derived from property assessed under some schedules than under others, and that persons assessed in respect of fixed salaries under Schedule E are in worse position than those whose income is taxed under certain of the other Schedules. This may be so. The tax is discriminatory in as far as it is only payable by persons above a certain income level. It is discriminatory in as much as certain bodies, companies, types of business, and charities are relieved from paying it, and a discrimination in favour of a person so relieved is in effect a discrimination against the others who have to pay.
But in no way does the legislation governing income tax discriminate against the judges or the judges’ salaries as such. Judges are subject to the same liabilities as any other recipient of a fixed salary, no more and no less. If the object of the constitutional provision is to safeguard the independence of the judiciary from pressure or interference by the executive, this object is attained so long as the tax is not used to discriminate against the judges as such. If, as is suggested, persons assessed in respect of a fixed salary under Schedule E pay a disproportionate share of the burden of income tax when compared with those assessed under other schedules, this incidental result of the framework of the income tax code cannot have been intended to operate, nor can it operate in such a way as to imperil the independence of the judiciary.
I agree, therefore, with the very careful and lucid judgment of Mr. Justice Dixon. Indeed, but for the general importance of the case, I would have contented myself with expressing such agreement.
I hold that the judicial salary of the late Mr. Justice O’Byrne was liable to income tax and sur-tax at the appropriate rates and that the appeal must be dismissed.

MAGUIRE J. :
I agree with the judgment of Mr. Justice Lavery.

HAUGH J. :
I agree with the judgments of the Chief Justice and Mr. Justice Kingsmill Moore.

 

Kennedy v. Hearne

Finlay C.J. [1988] IR 481
S.C.

Because the decision of the Supreme Court dealt with a question as to the validity of a law having regard to the provisions of the Constitution, a single judgment of the Court was delivered on that issue in accordance with Article 34, s. 4, sub-s. 5 of the Constitution of Ireland.
This judgment deals with an appeal against the dismissal by Murphy J. in the High Court of a claim made by the plaintiff for a declaration that certain provisions of the Income Tax Acts and Finance Acts were invalid having regard to the provisions of the Constitution.
In the original pleadings the section challenged was s. 485 of the Income Tax Act, 1967, (“the Act of 1967”) on the grounds that it infringes and fails to vindicate the constitutional rights of the plaintiff pursuant to Article 40, s. 3 of the Constitution.

In the notice of appeal originally filed, the only ground submitted dealing with alleged invalidity of a statutory provision was a ground relating to s. 485 in the terms set out in the statement of claim.
On the hearing of the appeal before this Court the submissions on behalf of the plaintiff indicated that the real challenge being made was to s. 7 of the Finance Act, 1968, (“the Act of 1968”) and that the grounds of that challenge were that it “purports to allow the first defendant to carry on the administration of justice contrary to Article 34 of the Constitution”. The first defendant is, of course, the Collector-General of the Revenue Commissioners.
It is clear from the judgment of Murphy J. in the High Court that although no amendment of the pleadings was sought or obtained in that court the plaintiff’s challenge was to s. 7 of the Act of 1968. It was made on two grounds, firstly, that s. 7 taken in conjunction with ss. 131 and 485 of the Act of 1967 did not admit of a construction or a means of operation which would be fair towards the plaintiff and which could vindicate his rights under Article 40, s. 3 of the Constitution. Secondly, it was urged that s. 7 offended against Article 34 of the Constitution.
Having regard to the manner in which the case had been argued in the court below, this Court without objection on behalf of the defendants afforded counsel on behalf of the plaintiff an opportunity to consider what precise statutory provision was being impugned and what precise provisions of the Constitution it was alleged gave rise to the invalidity of the impugned sections.
As a consequence the plaintiff sought and was granted liberty to amend the statement of claim by the addition to it of the following paragraph:
“12A. Further or in the alternative section 7 of the Finance Act, 1968, is unconstitutional in that this section purports to allow the first defendant to carry on the administration of justice contrary to the provisions of Article 34 of the Constitution 1937.”
A like paragraph was added to the grounds of appeal.
No question, therefore, in relation to the constitutional validity of any statutory provision was considered by the court other than that of s. 7 of the Act of 1968, having regard to Article 34 of the Constitution.
The impugned section and other relevant statutory provisions
Section 7, sub-ss. 1 and 2 of the Finance Act, 1968, provide as follows:
“7. – (1) Where the Revenue Commissioners have reason to believe that a person was liable under the regulations to remit tax in relation to any income tax month, and the person has not remitted any tax in relation to that income tax month, they may estimate the amount of tax which should have been remitted by the person within the period specified in regulations for the payment of such tax and serve notice on him of the amount estimated.
(2) Where a notice is served under subsection 1 on a person, the following provisions shall apply:

(a) the person may, if he claims that he is not liable to remit any tax for the income tax month to which the notice relates, by giving notice in writing to the Revenue Commissioners within the period of fourteen days from the service of the notice, require the claim to be referred for decision to the Appeal Commissioners and their decision shall be final and conclusive.
(b) on the expiration of the said period, if no such claim is required to be referred, or if such claim is required to be referred, on final determination by the Appeal Commissioners against the claim, the estimated tax specified in the notice shall be recoverable in the same manner and by the like proceedings as if the person were an employer and the amount specified in the notice were the amount of tax which he was liable under the regulations to deduct from emoluments paid by him during the income tax month specified in the notice reduced by any amounts which he was liable under the regulations to repay during that income tax month.
(c) if at any time after the service of the notice the person furnishes a declaration of the amount which he is liable under the regulations to remit in respect of the income tax month specified in the notice and pays the tax in accordance with the declaration together with any interest and costs which may have been incurred in connection with the default, the notice shall, subject to paragraph (d), stand discharged and any excess of tax which may have been paid shall be repaid.
(d) where action for the recovery of tax specified in a notice under subsection (1), being action by way of the institution of proceedings in any court or the issue of a certificate under section 485 of the Income Tax Act, 1967, has been taken, paragraph (c), shall not, unless the Revenue Commissioners otherwise direct, apply in relation to that notice until the said action has been completed.”
Section 131, sub-s. 1 (a) and (b) of the Act of 1967 provide as follows:
“(1) (a) The provisions of any enactment relating to the recovery of income tax charged under Schedule E shall apply to the recovery of any amount of tax which an employer is liable under this Chapter and any regulations thereunder to pay to the Revenue Commissioners by reference to any income tax month as if the said amount had been charged on the employer under Schedule E.
(b) In particular and without prejudice to the generality of paragraph (a), this subsection applies the provisions of sections 480, 485, 486, 488 and 491.”
Section 485, sub-ss. 1 and 2 of the Act of 1967 provide as follows:
“(1) Whenever any person makes default in paying any sum which may be levied upon him in respect of income tax, and notwithstanding (in the case of a Schedule A assessment) that the defaulter is not named in the assessment of the tax, the Collector may issue a certificate to the county registrar or sheriff of the county in which the defaulter resides or has a place of business or (when the tax in default is charged on lands or tenements) in which the lands and tenements are situate, certifying the amount of the sum so in default and the person upon whom the same is leviable and the lands and tenements (if any) on which the sum is charged.
(2) Immediately upon receipt of the certificate the county registrar or sheriff shall proceed to levy the sum therein certified to be in default by seizing all or any of the goods, animals and other chattels within his bailiwick belonging to the defaulter and (when the tax in default is charged on lands or tenements) all or any goods, animals and other chattels which may be found on such lands or tenements, and for such purposes he shall (in addition to the rights, powers and duties conferred on him by this section) have all such rights, powers and duties as are for the time being vested in him by law in relation to the execution of a writ or fieri facias so far as the same are not inconsistent with the additional rights, powers and duties conferred on him by this section.”
Part V of the Income Tax (Employment) Regulations, 1960 (S.I. No. 28) imposes on an employer the obligation to remit to the Collector on or before the fourteenth day of the month all amounts of tax which he was bound to deduct from emoluments paid by him during the period of one month up to the fifth day of that month.
Counsel drew to the attention of the Court the fact that s. 22 of the Finance Act, 1973, dealt with the application of s. 131 of the Act of 1967 to a tax estimated under s. 7 of the Act of 1968. This section had not been adverted to in the High Court and neither of the parties to the appeal submitted that it was relevant to the issues before this Court.
The facts
The facts relevant to this issue as found by the learned trial judge have not been challenged on appeal and may thus be summarised.
The plaintiff who is a solicitor was, in 1984 and for some years previously, an employer obliged to deduct from emoluments paid to his employees appropriate sums for tax, and to remit those sums to the Collector General by the fourteenth day of each month in respect of payments made within the month ending on the fifth day of the same month.
Such remittances should have been accompanied by a form known as a P30 form in which details of the emoluments and calculation of tax were entered. At the same time and in the same manner the plaintiff was also obliged to remit the employer’s contribution towards pay-related social insurance in respect of each employee.

In March, 1984, a P30 form in respect of the month commencing the 5th April, 1984, and ending the 5th May, 1984, was sent to the plaintiff. He did not complete or return that form nor did he remit any money in respect of that month. He was a person liable to remit tax and accordingly the Revenue Commissioners became entitled, pursuant to s. 7, sub-s. 1 of the Act of 1968 to estimate the amount of tax which he should have remitted for that month. They did so and issued their estimate on the 12th June, 1984, in the sum of £900 for P.A.Y.E. and £1,030 for P.R.S.I.
The plaintiff did not within fourteen days or indeed at all exercise the right conferred on him by s. 7, sub-s. 2 (a) of the Act of 1968 by requiring that a claim that he was not liable to remit any tax for the month be referred to the Appeal Commissioners. Accordingly, pursuant to the provisions of s. 7, sub-s. 2 (b) of the Act of 1968 by the 26th June, 1984, the tax estimated became recoverable from the plaintiff.
On the 5th July, 1984, a demand was issued and served on the plaintiff demanding payment of the sums estimated and warning him that if he did not pay those sums within seven days of the date of the demand that the Collector General would be obliged to enforce recovery without further notice, either by the issue of certificates to the sheriff/county registrar directing him to levy the full amount with costs by distraint or by the institution of court proceedings.
The plaintiff did not pay the amount demanded within seven days from the 5th July nor did he within that period furnish to the Revenue Commissioners a declaration of the amount which he was liable under the regulations to remit in respect of the income tax month of April/May and pay the tax in accordance with that declaration as he would have been entitled to do pursuant to s. 7, sub-s. 2 (c) of the Act of 1968.
The making and issuing of estimates and the making of a demand had been processed by a computer which was programmed to carry out these activities at specified times. The provisions of that programming included a system whereby a further step towards ultimate recovery of the tax could not take place until the necessary prior step had been completed.
The finding of the learned trial judge was that by this system the recovery procedure threatened in the demand of the 5th July was invoked, as far as the computer was concerned, on the 16th July.
On the 19th July a member of the plaintiff’s staff delivered by hand to the Revenue Commissioners a declaration of the amount which it was stated the plaintiff was liable under the regulations to remit in respect of the income tax month of April to May and a bank draft for the amount so declared. The amount declared was, in fact, less than the amount estimated and demanded, but it is not disputed that it was sufficient to cover the plaintiff’s liability.
A system existed within the office of the Collector General which was designed to prevent the continuance of the recovery procedures which had been invoked by the computer on the 16th July upon receipt of this declaration and payment. For some reason that has not been explained this procedure broke down, and on the 25th July a notice pursuant to s. 485 of the Act of 1967, signed by an officer on behalf of the Collector General, was issued to the sheriff’s office. Upon receipt of that the sheriff’s office issued on the 13th August to the plaintiff’s office a notice demanding payment and threatening distraint.
The plaintiff then discovered that the declaration and payment on the 19th July had taken place and obtained an interim order from the High Court preventing further action on the recovery by the sheriff. The purported notice under s. 485 was subsequently withdrawn.
The law
The Act of 1968 being an Act of the Oireachtas is presumed to be constitutional until the contrary is clearly established.
The appellant’s contention is that s. 7 empowers the Revenue Commissioners and/or the Collector General to carry out functions which constitute the administration of justice within the meaning of Article 34 of the Constitution. This contention is based on an assertion that because s. 7 envisages at sub-s. 2 (d) that the provisions of s. 485 may be invoked and because that section can only be invoked if a person “makes default in paying any sum which may be levied on him”,the decision to invoke the powers of the sheriff involves the determination of a justiciable controversy, namely, whether the taxpayer is or is not in default in the payment of a tax levied. If a taxpayer who is an employer avails of the right afforded to him by s. 7, sub-s. 2 (c) to make a return admitting the amount of tax due by him and remits with that return that tax, then, by virtue of the provisions of that section the estimate previously served upon him is discharged and he is not a person who is in default in the payment of any tax levied upon him. If the amount admitted by him is insufficient a further estimate or assessment would have to be made and he would then again become a person, unless he paid it, in default in payment of a tax levied upon him.
One of the usual features of a justiciable controversy is that two parties are contesting some matter, whether of fact or of law, with conflicting or contradicting assertions concerning it.
In the instant case and in the procedures necessarily envisaged by s. 7 of the Act of 1968 no such contest arose. There was not at the date of the issue of the certificate to the sheriff, namely, the 25th July, a controversy about whether any tax had been paid in which the Collector General decided in favour of one contender against the other. An amount of tax had been paid but knowledge of its payment had not been transmitted to the Collector due to the error in the computer’s operation. The Court is satisfied that the Collector General in issuing the certificate did so on the basis that the tax remained unpaid but did not make a judicial determination of that fact.
A characteristic of the exercise of a judicial function is that by its determination within jurisdiction the tribunal, court or individual concerned imposes liabilities or affects rights. See Reg. (Wexford County Council) v. Local Government Board [1902] 2 I.R. 349.
The Court is satisfied that in this case a determination or a decision by the Collector General that the tax had not been paid could not and did not impose a liability on the taxpayer nor affect any of his rights. What was capable of imposing a liability or affecting rights was the fact of default in payments of a levied tax. In the present case, as has been decided in the High Court, once that fact was absent at the date of the issue of the certificate on the 25th July, 1984, what occurred was from there on a nullity. It was urged on behalf of the plaintiff that the notice to the sheriff and the consequential action of the sheriff, while admittedly a nullity, created embarrassment and imposed problems upon the plaintiff. That is true but it is not to be equated with the imposition of a liability or the affecting of a right.
A further test which can be applied to the question whether this section allows the exercise of a judicial function is whether it has the effect of invading or ousting any of the functions vested in the judges by Article 34 of the Constitution. The Court is satisfied that it has not. If, as occurred in this case, through an error the Collector General issues a certificate to the sheriff and purports to put in train the provisions of s. 485 of the Act of 1967 in a case where no default has occurred, then the courts are empowered to intervene immediately as they did in this case, to resolve the issue between the taxpayer and the Collector General and to stop and set aside any action by way of recovery which has already taken place. They also have the power to compensate the taxpayer in respect of any loss which he has already incurred. The provisions of the section, therefore, do not oust the jurisdiction of the Courts.
This Court is, therefore, satisfied that the submission that the provisions of s. 7 of the Finance Act, 1968, are invalid having regard to the provisions of the Constitution fails. The appeal on this ground must, therefore, be dismissed.

On the further issues of the appeal the following judgments were then delivered:

Finlay C.J.
15th March 1988

The facts material to the issues arising in this case other than the issue already determined by the Court concerning the constitutional validity of s. 7 of the Finance Act, 1968, in so far as they occurred prior to the trial of the action in the High Court, are largely set out in the judgment of the Court already pronounced and it is unnecessary for me to repeat them here.
Three issues remain for consideration in the appeal and they are as follows:

(1) Whether the manner in which the defendants operated the provisions of s. 7 of the Act of 1968 and s. 485 of the Act of 1967 in the instant case constituted an invasion of the plaintiff’s constitutional rights in respect of which he is entitled to damages apart from and in addition to the damages to which he is admittedly entitled in respect of defamation.
(2) Whether in the circumstances of the case the plaintiff is entitled to a declaration that the action of the defendants in issuing the certificate pursuant to s. 485 of the Act of 1967 was ultra vires.
(3) Whether the award of the learned trial judge of £2,000 aggravated damages in addition to a sum of £500 ordinary damages for defamation is adequate.
Having carefully considered the submissions made on these three issues, I have come to the following conclusions.
Damages for invasion of constitutional rights
I am not satisfied that the plaintiff has established any invasion of his constitutional rights in the manner in which the Revenue Commissioners, the Collector General or the sheriff dealt with the procedures under the sections of the Act of 1968 and the Act of 1967 respectively.
Having regard to the regulations of 1960, the plaintiff was clearly in default by the month of June, 1984, in the making of the return and the payment of the tax due by him for the month April/May, 1984. His obligation to pay that amount and make that return, even if he could have forgotten it, was drawn to his attention by the transmission to him of the P30 form in the month of March, 1984. He then received, on the finding of the learned trial judge, an estimate, not only setting out the amounts but setting out in very clear and unequivocal terms the consequences of the making of that estimate and the rights and liabilities which the plaintiff had, having regard to that step. He did not acknowledge that nor did he take any step, in particular, make any appeal to the Commissioners with regard to his liability to pay tax at all, nor make the return under s. 7, sub-s. 2 (c) which would have set aside that estimate. After a due period he then received a demand for the tax estimated, coupled with a completely unambiguous warning that if he did not pay that demand within seven days, without further notice steps for recovery would be initiated, including the possible recovery by distraint under section 485. He did not pay the tax demanded within seven days, nor did he within that period make a return of his own admitted amount and a payment with it which, again, if he had done so, would have stopped the operation of the estimate and in a sense set at nought the demand, having regard to the provisions of s. 7, sub-section 2 (c). Only after those series of defaults which, taking the due date for the return of the form and the payment as being the 14th May, 1984, continued for approximately two months, was the recovery procedure invoked. When it was, the learned trial judge has found as a fact that steps and a procedure were in existence which should, were it not for some error on the part of the computer, have prevented the notice issuing, even so late as the date on which it did issue, the 25th July, 1984.
Such a procedure, in my view, is not unfair, does not fail to vindicate or defend the rights of the taxpayer, and if he has suffered by reason of that, apart from the suffering of defamation which is a different matter, it could not be said to be an invasion of his constitutional rights.
Declaration of ultra vires
There can be no doubt, as the Court has already decided in its judgment on the issue of the constitutional validity of the section, that the issue of the notice and the subsequent proceedings by the sheriff were all a nullity. The section must be construed as vesting in the Revenue Commissioners and the Collector the power to issue a notice to the sheriff under s. 485 only in the case where an actual default in payment of a levied tax has occurred. Where, as happened in this case, they issued such a notice where that default had not continued up to the time that the notice was issued, what they did was a nullity. That fact has already been declared in the judgment of the learned trial judge against which the defendants have brought no appeal. What the plaintiff is now seeking is a declaration from this Court that that nullity is to be equated with ultra vires. In my view, a person seeking such a declaration must show a bona fide interest and a practical advantage to be gained from the making of such declaration. I can see none in this case nor is it necessary for the determination of any issue in this case to decide the somewhat academic question as to whether the issue of the notice which was undoubtedly at law a nullity and of no effect must be put within the category of being outside the power of the Revenue Commissioners and the Collector. I would, therefore, dismiss the appeal on this ground.
Measure of damages
The grounds for the claim for defamation were that the notice issued by the Collector to the sheriff became known to the sheriff and to members of his staff who dealt with it and that it was and remained as a notice in the sheriff’s office for a period of some twenty days or so, and could have been inspected by persons who made searches in that office with regard to the plaintiff. No concrete evidence was adduced of any person who had searched and so discovered the apparent nonpayment of this tax but it was reasonable to infer that the members of the staff in the office of the sheriff would have become aware of the name of the plaintiff who seemed not to have paid this tax. In respect of that defamation a sum of £500 was assessed by the learned trial judge and against that neither side appeals. At the
trial the plaintiff and his witnesses who were members of his accounting staff were cross-examined searchingly and rigorously with regard to the procedures and practices concerning the maintenance of a deposit account out of which P.A.Y.E. and P.R.S.I. liabilities to the Revenue Commissioners were paid. They were also cross-examined with regard to a substantial delay in paying V.A.T. in respect of one of the two offices maintained by the plaintiff. Upon enquiry from the learned trial judge as to the purpose of that cross-examination, there being of course no plea of justification in the case, he was informed by counsel on behalf of the defendants that the defendants would establish by evidence, and one must assume, therefore, both by cross-examination and such evidence as they might call, that the plaintiff was a cheat and a person who had not got any reputation in respect of which he was entitled to recover damages. It was that persistent cross-examination and that direct accusation that led the learned trial judge to make an award of aggravated damages. Initially, the defendants served a notice to vary against that award but that was withdrawn at the hearing of the appeal.
The plaintiff is not only a solicitor practising in the city of Dublin, but he sues as a solicitor, and in the running of the case in the court below, with regard to the issue of defamation, laid much stress on the likely consequences upon a solicitor of being a defaulter in the payment of tax. Whereas the original defamation had been confined one might assume to a very limited number of persons indeed, and rapidly explained to most of them, the accusation that he was a cheat and had no reputation in respect of which he could be entitled to damages, coupled with the underlying suggestion that he had operated a book-keeping and banking system designed to make a profit for himself by withholding from the Revenue sums which he had already deducted from the emoluments to his staff, was made in open court in Dublin.
It was contended on behalf of the defendants on this issue that whereas aggravated damages were appropriate, that a principle should be invoked whereby a defendant who made an accusation attracting aggravated damages recklessly and without any basis for so doing might attract a certain level of damages, a lower level of aggravated damages was applicable to a person who made the same accusation and in the same way failed to establish it, but who had had more grounds for asserting it than he who was reckless. I cannot accept this principle nor see any possible application of it to a case of aggravated damages. It is possible to conceive of such a principle, though I do not decide that it exists in a case of punitive or exemplary damages where an element of the misconduct of the party is concerned. This principle is quite unsupported by authority and I reject it.
Having regard to what I would consider the very large difference between the seriousness of the original defamation and the much greater seriousness of the harm to the plaintiff’s character and reputation as a solicitor arising from the conduct of the proceedings in the High Court, I conclude that the sum of £2,000 as aggravated damages was significantly inadequate to compensate a solicitor for being publicly accused in the city in which he practises of being a cheat and having no reputation. In those circumstances, I am satisfied that this Court should intervene on this appeal to adjust those damages, and I would substitute for the sum of £2,000 aggravated damages a sum of £10,000 aggravated damages, making a total award of damages for defamation of £10,500.

Henchy J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
I agree.

 

Deighan v. Hearne

[1986] IR 601
Murphy J. 605
H.C.

Murphy J.
27th August 1986

This case involves the analysis of several sections of the Income Tax Act, 1967, as amended from time to time and presented a wide-ranging challenge to the constitutionality of several of those sections. If the plaintiff’s claim is successful the machinery by which tax is assessed by Inspectors of Taxes will be condemned, as will be the procedures by which arrears of tax are levied from defaulting taxpayers. In these circumstances it is particularly regrettable that the plaintiff was not professionally represented, though that is not to imply that he did not have an impressive range of knowledge of the Constitution and the decisions of the courts thereon as well as a considerable expertise in the presentation of his case.
It is common case that the plaintiff was assessed to tax for the year ending the 5th April, 1985, under Schedule D of the Income Tax Act, 1967.
The assessment is dated the 27th July, 1984, the description of the plaintiff/taxpayer is given as “furniture wholesaler”; the taxable income is stated at £15,000 and the net income tax at £6,680. There was evidence that assessments had been made under the same description and in varying amounts for the years ending the 5th April, 1984, 1983, 1982 and 1981. The evidence of the plaintiff was that he had no recollection of receiving the earlier notices of assessment but did not deny that he might have received them. I am satisfied that they were duly dispatched by the appropriate authorities and indeed received by the plaintiff. These assessments were made by successive Inspectors of Taxes for the Dublin (Income Tax) Number 12 District under s. 184, sub-s. 2 of the Income Tax Act, 1967. That sub-section, as amended, provides as follows:
“If
(a) a person makes default in the delivery of a statement in respect of any tax under Schedule D or F, or,
(b) the inspector is not satisfied with a statement which has been delivered, or has received any information as to its insufficiency,
the inspector shall make an assessment on the person concerned in such sum as, according to the best of the inspector’s judgment, ought to be charged on that person.”
The foregoing is the “default” procedure. The scheme actually contemplated by the income tax code (what I may call “the ordinary procedure”)entails the delivering by the taxpayer to the Inspector of Taxes, when so required by notice in that behalf given by the Inspector, of returns of income in the prescribed form. Such returns are provided for by s. 172 of the Income Tax Act, 1967. To ensure compliance with that statutory requirement significant penalties are imposed by s. 500 of the same Act. Having received the returns, the Inspector of Taxes is empowered by s. 181 to make an assessment under and for the purposes of Schedule D of the income tax code. That section goes on to provide that the Inspector should give notice to every person assessed of the assessment made on him, the amount of the assessment and the time allowed for giving notice of appeal against it. Any taxpayer aggrieved by any assessment to income tax made upon him by an Inspector has the right, under s. 416 of the Act of 1967, to appeal the assessment to the Appeal Commissioners on giving notice in writing to the Inspector within thirty days after the date of the notice of assessment. If, however, notice of appeal is not given the assessment becomes “final and conclusive” by virtue of sub-s. 6 (a) of s. 416 aforesaid. That cut-off period is subject to the qualification that the taxpayer may seek and obtain an extension of time for appealing from the Inspector of Taxes at any time within twelve months after the date of the notice of assessment on the grounds of absence, sickness or other reasonable cause. Furthermore, under s. 416, sub-s. 7 (d) the taxpayer may at any time seek an extension of time for appealing from the Inspector of Taxes provided that he submits to the Inspector an appropriate return of income and pays the tax charged by the assessment together with interest thereon. In either case there is an appeal to the Appeal Commissioners from the decision of the Inspector.
With regard to the collection of tax, s. 480, sub-s. 1, as amended, provides as follows:
“If a person neglects or refuses to pay the sum charged, upon demand made by the Collector in accordance with the assessments and warrants delivered to him, the Collector shall, for non-payment thereof . . . distrain the person charged by his goods and chattels, and all such other goods and chattels as the Collector is hereby authorised to distrain, without any further authority for that purpose than the warrant delivered to him on his appointment.”
Section 483 of the Income Tax Act, 1967, as enacted, empowered the Special Commissioners (as they were then known) to commit to prison a person who neglected or refused to pay tax charged upon him by virtue of that Act within 10 clear days after demand made on him and where no sufficient distress could be found whereby the same might be levied. However the Income Tax (Amendment) Act, 1967, which was enacted immediately following the Income Tax Act, 1967, provided for the repeal of s. 483 aforesaid.
The procedure for recovery invoked in the present case is that provided for in s. 485 of the Income Tax Act, 1967, which section, as amended provides as follows:
“(1). Whenever any person makes default in paying any sum which may be levied upon him in respect of income tax, the Collector may issue a certificate to the county registrar or sheriff of the county in which the defaulter resides or has a place of business certifying the amount of the sum so in default and the person upon whom the same is leviable and the lands and tenements (if any) on which the sum is charged.
(2). Immediately upon receipt of the certificate the county registrar or sheriff shall proceed to levy the sum therein certified to be in default by seizing all or any of the goods, animals and other chattels within his bailiwick belonging to the defaulter and for such purposes he shall (in addition to the rights, powers and duties conferred on him by this section) have all such rights, powers and duties as are for the time being vested in him by law in relation to the execution of a writ of fieri facias so far as the same are not inconsistent with the additional rights, powers and duties conferred on him by this section.”
There was some conflict or at any rate some confusion as to what documents were served by the Inspector on the plaintiff and what returns were made by the plaintiff to the Inspector. Mr. Deighan was clear that he made some returns of his income and he referred to an affidavit sworn by the defendant Mr. Noel Murphy on 22nd November, 1984, in these proceedings as corroborating his evidence in that regard. However it is clear that the earliest return to which Mr. Murphy refers is one dated 18th January, 1984, and that the majority of the assessments were made before that date. Again there was some conflict as to whether the assessments had been posted to the plaintiff. The evidence on behalf of the defendants was, as one might expect, limited to statements made on the basis of established office routine. However, in every case the Inspectors of Taxes who gave evidence were clear and confident that the assessments and other documents were duly dispatched. On the other hand, the plaintiff very fairly conceded that over a period of years he not infrequently received communications from the Revenue authorities which he neglected to open. In the circumstances I would feel obliged to resolve any conflict in this regard in favour of the Inspectors of Taxes and against the plaintiff.
The position then, as a matter of fact, is that the assessments were made, as I understand the evidence, under s. 184 of the Income Tax Act, 1967, in other words, under the default procedure and as a result of the failure of the plaintiff to make returns when called upon to do so. I am also satisfied that the notices of assessments were duly dispatched, and it is common case that the plaintiff did not appeal within the time limited by the Act nor did he at any time seek an extension of time for appealing in pursuance of the provisions in that behalf hereinbefore referred to. In those circumstances the various assessments became “final and conclusive” and the Collector General by a certificate dated May, 1984, (the first certificate) certified to the county sheriff of County Dublin that the plaintiff had made default in paying taxes and interest leviable on him in sums totalling £32,244.50 in respect of the years up to and including the income tax year 1983/1984. That certificate was signed by Mr. Thomas F. Maher who gave evidence in the proceeding and in addition to verifying his signature swore that the sums referred to in the certificate had been demanded from the plaintiff on several occasions prior to the granting of the certificate. Following on that certificate the Dublin County Sheriff, the second defendant herein, caused a notice of seizure to be served on the plaintiff. That notice is not clearly dated but may have been issued on the 2nd June, 1984. In any event it recites the first certificate delivered by the Collector General of Revenue to the county sheriff and sets out the sums of money referred to in that certificate together with the sheriff’s fees and court messengers’ expenses bringing the total amount of the demand to £33,056.68. The particular notice which was put in evidence by the plaintiff was signed by A.J. Donnelly who is described in the notice as a court messenger. As will appear the plaintiff attached considerable significance to that signature. The only remaining document put in evidence was another certificate granted by the Collector General. This document did not relate to the plaintiff’s affairs but was a precedent given by somebody in the county sheriff’s office to the plaintiff for his information. To avoid confusion I may refer to this as “the additional certificate”. Its importance such as it is is that it contains a reference to a number of Acts and Regulations.
It was in these circumstances that the plaintiff advanced the following arguments:
(1) That as the assessments made on him described him as a “furniture wholesaler” that they were invalid and should be set aside by the High Court. In support of this contention the plaintiff relied upon the decision of the Supreme Court in the Inspector of Taxes v. Kiernan [1981] I.R. 117 and certain authorities cited therein. In that case the Supreme Court had to consider whether the expression “dealer in cattle” extended to and included a “dealer in pigs”. As I see it the decision had no relevance whatever to the present proceedings. I believe that the plaintiff misunderstood a passage which Mr. Justice Henchy had quoted from the decision of Lord Justice Denning in Royal Court Derby Porcelain Co. Ltd. v. Russell [1949] 2 K.B. 417 which included the following sentence (at p. 429): “But if a decision is, in fact, shown to be erroneous, there is no rule of law which prevents it being overruled.” It is clear that Lord Denning was referring to the duty of the court to depart from and indeed overrule an erroneous precedent. It is in no sense authority for the proposition that the High Court has a general jurisdiction to set aside an assessment to tax on the ground that it could be shown that the assessment was erroneous in some material respect. Indeed the more obvious ground for launching an appeal on that basis would be for the taxpayer to contend, notwithstanding the lapse of time, that the amount of the assessment was excessive. It seems to me and I so ruled in connection with the preliminary application made by the plaintiff for the trial of a preliminary issue that it was essential for the plaintiff to establish in the first instance that the procedure by which the assessments were made was invalid or unconstitutional before he could reopen the assessments which in accordance with the provisions of the relevant legislation had now become final and binding on the plaintiff. (2) The plaintiff asserted in opening his case that certain material legislation and statutory instruments had not been available and could not be produced by the Government Publications Office when sought by him. It was contended by the plaintiff that this was unjust and constituted a breach of Article 6 of the Convention on Human Rights. However, the plaintiff did not deal with this matter in his evidence and indeed I believe that he was misled into thinking that the legislation and regulations referred to in the additional certificate were material to the present case. Quite clearly that is not so. With regard to the legislation and regulations referred to in the first certificate all of the legislation and regulations which appeared to be material to the present case would seem to me to be available within the loose-leaf folders published by the Government Publications Office relating to fiscal legislation. However, as I say, the matter was not pursued in evidence and in those circumstances it is not necessary for me to explore this potentially interesting submission.
(3) That the notice of seizure of the plaintiff’s goods is invalid because it was signed by a court messenger. The precise complaint made by Mr. Deighan under this heading is that the notice “would have to be signed by somebody stronger than a court messenger”. Clearly this is a submission without any substance whatever. The authentication of legal and other documents is a routine administrative matter and I can see no reason whatever to question the constitutionality of legislation conferring that function on a subordinate officer. It was not suggested that the procedure adopted was not authorised by the legislation or regulations governing the conduct of the sheriff in the exercise of his functions. Indeed it is quite clear that the signature of the court messenger was envisaged by the draughtsman of the form submitted in evidence. Again the plaintiff was clearly confusing different legal concepts when he contended that as the sum involved was not”a minor amount of money” that the jurisdiction to sign the form could not be vested in the court messenger. Again it seems to me clear beyond debate that the exploration by the plaintiff of the classification of offences into minor and non-minor offences had no bearing whatever on the present case. That classification is relevant only in determining what offences may be tried by courts of summary jurisdiction in accordance with Art. 38, sub-s. 2 of the Constitution.
(4) The plaintiff also relied on Art. 37, sub-s. 1 of the Constitution which provides:
“Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.”
This Article would be relevant if it were established that the Inspector of Taxes in assessing tax, whether under the ordinary procedure or the default procedure, was exercising a function or power of a judicial nature. If it were so established perhaps the defendants might seek to contend that such power or function was of a limited nature. In the present case the issue between the parties is not the extent of the power or function of the Inspector but its nature. On behalf of the defendants the argument and the only argument in this context is that the function exercised by the Inspector is a purely administrative one. In these circumstances it seems to me that this Article has no relevance to the present case.
(5) It seems to me, however, that the real gist of the plaintiff’s argument was summarised in an assertion made by him in the following terms: “They (the defendants) should not be allowed to by-pass the courts.” This argument whilst perhaps not fully developed was, as I understood it, divided into two parts, first, that any legislation purporting to empower an Inspector of Taxes to assess tax was necessarily unconstitutional and secondly, that legislation authorising execution by the sheriff otherwise than on foot of an order of the court was likewise unconstitutional. In support of the first of these two arguments the plaintiff referred to the following authorities, namely, In re O’Farrell and Another [1960] I.R. 239; Deaton v. The Attorney General and Others [1963] I.R. 170; Murphy v.Corporation of Dublin [1972] I.R. 215; Abbey Films v. The Attorney General [1981] I.R. 158 and McGlinchey v. Wren [1982] I.R. 154.
The argument of the plaintiff based on these authorities was confused by the mistaken belief of the plaintiff that the assessments raised on him were made pursuant to s. 8 of the Finance Act, 1968. Although his attention was drawn to this error it was not until he addressed the court in reply that he graciously recognised his error.
Section 8 of the Finance Act, 1968, which in fact deals with alleged under-payments of tax by an employer on behalf of his employees does contain phrases such as “The Revenue Commissioners have reason to believe”, “they [the Revenue Commissioners] may make an estimate” and”the total amount of tax which in their [the Revenue Commissioners]opinion.” Those terms and the functions implicit in them were much criticised by the plaintiff. The difficulty is that the particular terms do not in fact occur in the section under which the assessment was made, namely, s. 184 of the Act of 1967 (quoted above). Under that section it is the duty of the Inspector in default in the delivery of a statement in respect of any tax to”make an assessment on the person concerned in such sum as, according to the best of the inspector’s judgment, ought to be charged on that person”.
In the circumstances it is difficult to do justice to the plaintiff’s argument. It is clear, however, that it was his contention that the assessment of tax was a judicial function which should be carried out by courts established under the Constitution. Mr. Deighan relied upon the fact that an”assessment” was made by an “assessor” and that the dictionary definition of an assessor equated such a person with a judicial officer. Perhaps more cogently he invoked the decision in Murphy v. Corporation of Dublin [1972] I.R. 215 and, as I understood it, sought to rely on the passage from the judgment of Walsh J. p. 234 in the following terms:
“It is, however, impossible for the judicial power in the proper exercise of its functions to permit any other body or power to decide for it whether or not a document will be disclosed or produced. In the last resort the decision lies with the courts so long as they have seisin of the case.”
That proposition follows from the fact as Mr. Justice Walsh had pointed out that under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution.

The second aspect of this argument concerns the right of the sheriff to execute without the intervention of a court order. Whilst Mr. Deighan contended that execution was an integral part of the administration of justice he did qualify this contention perhaps surprisingly to the extent that he accepted that execution might be effected without a court order where the amounts involved were small.
In relation to this argument the plaintiff invoked Article 40, ss. 3 and 5 of the Constitution. It was his contention that execution otherwise than on foot of a court order necessarily failed “to defend and vindicate the personal rights of the citizen” (s. 3) and that execution involving entry into the dwelling of the citizen (otherwise than in pursuance of a court order) offended s. 5 which guaranteed the inviolability of the dwelling of the citizen.
(6) Finally, it was contended by the plaintiff that the procedure by which his liability to income tax was assessed and the means by which the Revenue Authorities sought to recover it deprived the plaintiff of his unspecified constitutional right established in Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345 to have recourse to the High Court to assert and vindicate his legal rights.
The reply made on behalf of all of the defendants to these arguments had the merit of brevity and simplicity. Having led evidence to establish that the assessments in question were properly made in accordance with what I have described as the default procedure, it was contended on behalf of the defendants that this procedure and execution by the sheriff on foot of it constituted an administrative function and not a judicial one. No authorities were opened in support of that proposition but instead counsel quoted extensively from the chapter dealing with administration of justice in the second edition of Dr. Kelly’s book: The Irish Constitution.
Over the period of fifty years which elapsed between the decision in Lynham v. Butler (No. 2) [1933] I.R. 74 and O’Brien v. Bórd na Móna [1983] I.R. 255 many efforts have been made to define the administration of justice or at any rate identify its “characteristic features”. However, all authorities would appear to be in agreement that one must first identify the function carried out by the person or body alleged to be exercising the judicial function and secondly, to ascertain the consequence flowing from the exercise of the function. The statutory duty of the Inspector of Taxes operating the ordinary procedure is to obtain from the taxpayer information regarding all of the sources of the taxpayer’s income and the amount of income derived from such sources. With those particulars and other information contained in the statutory returns the Inspector of Taxes makes an assessment in the sense that he computes or calculates the taxable income of the particular taxpayer and the amount of his liability to tax. In many cases, this exercise will involve a detailed knowledge by the Inspector of the Income Tax Act, 1967, the amendments which have been made annually since then, numerous statutory instruments made thereunder and indeed a detailed knowledge of the principles established by judicial decisions going back over many years. Again in many cases the proper discharge of the Inspector’s duties will require a considerable familiarity with the principles of accounting and various methods of book-keeping. However, the knowledge and experience which the Inspector may have to bring to bear on particular cases does not alter the essential nature of his task which is to assess in the sense of calculating or computing the amount of the tax which falls to be paid having regard to the information provided by the taxpayer himself.
It seems to me that so described the function of the Inspector of Taxes is by any standard a purely administrative one. The assessment does not pre-suppose any dispute or controversy between the taxpayer on the one hand and the Inspector on the other. What the procedure envisages is the application of established statutory provisions in relation to the imposition of personal taxation by an officer of experience and integrity to information which it is the statutory duty of the taxpayer to provide in a particular form and within particular time limits. Without adding to the literature on judicial functions or the administration of justice it seems to me that it can be said with confidence that such a task in its essential nature is administrative and not judicial.
Where the taxpayer neglects to make any return the Inspector is forced to resort to the default procedure. In that event the Inspector must exercise his best judgment on whatever information is available to him and as a consequence the task of the Inspector may be more difficult and certainly the danger of an error in the assessment is increased immeasurably. However at the end of the day the legal effect of each procedure is the same. The taxpayer on being given notice of the assessment made on him either acquiesces to it or disputes it in accordance with the statutory procedures outlined above.
Nor is it correct, in my view, to see the determination by the Inspector of Taxes as something in the nature of a judgment or order. The computation by the Inspector derives its value and authority in the first place from the fact that it represents a correct application of the statutory provisions to the facts of the particular case. The fact that the assessment, even where mistaken, may become “final and conclusive” in accordance with s. 416, sub-s. 6 (a) of the Income Tax Act, 1967, (as amended), is not a direct consequence of the assessment made by the Inspector but the failure of the taxpayer to dispute the assessment. To the extent that the taxpayer may be precluded from disputing the assessment, this restriction takes effect as something more akin to a statutory estoppel resulting from the inaction of the taxpayer than a judicial order or decree purporting to have been made by the Inspector.
The argument that a recovery of amounts due by distress levied by the county sheriff and the right to break into and enter the dwelling houses of citizens is an integral part of or derives from the judicial process is not supported by authority and would appear to be in conflict with well established usage. Assuming that an assessment to tax has been correctly made, that notice thereof has been duly given to the taxpayer and that he is content to accept the assessment as correct, what purpose would be served by invoking the judicial process? Indeed what issue could the courts be asked to determine in those circumstances? If then the amount of the outstanding tax had been determined by assessment, agreement or acquiescence why should not the Revenue Authorities themselves or by a suitably qualified public official such as the county sheriff distrain directly for the amount owing? It has never been questioned, so far as I am aware, that a landlord can distrain for arrears of rent without recourse to the court. I see no reason why the Public Exchequer should have any lesser right. Indeed Kenny J. in Deaton v. Attorney General and Others [1963] I.R. 170 in a passage at p. 175 of his judgment which does not appear to have been questioned by the Supreme Court in this respect said:
“The power of carrying a judgment into effect has never been one that the Courts in this country possessed as the execution of judgments . . . has always been a function of the Executive.”
To the argument that the dwelling of the taxpayer is inviolable an answer is to be found in the decision of the Supreme Court in Abbey Filmsv. the Attorney General [1981] I.R. 158. There the Court clearly accepted that a statutory provision could confer the power on an authorised officer (without the intervention of the judicial process) to enter into a dwelling house and inspect documents there where such action was warranted by”the exigencies of the common good.”
The remaining argument concerns the unspecified constitutional right to have recourse to the courts. The short answer to the argument based on this proposition is that so long as there is a valid and effective determination of the tax payable by the plaintiff there is no justiciable issue to refer to the court. Furthermore, in so far as it is implicit in the argument of the plaintiff that he and every citizen has the right to have his liability to tax determined in the event of dispute by the High Court, this argument must be reviewed in the light of the decision of Gannon J. in R. v. R. [1984] I.R. 296 as followed and applied by a decision of my own in O’R. v. O’R. [1985] I.R. 367. While those cases clearly accept, as the Constitution very clearly provides, that the High Court is invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, the court has an inherent jurisdiction to decline to entertain certain issues where legislation has provided other suitable and appropriate machinery to resolve them. It seems to me, therefore, whilst accepting that the High Court does indeed possess the jurisdiction to determine in the event of controversy the liability of a citizen to tax that this is not a jurisdiction which the courts would exercise save in the most exceptional circumstances as long as legislation provided a constitutional procedure competently staffed and efficiently operated to carry out that unpopular but very necessary task.
In these circumstances, it seems to me that the claim by the plaintiff fails on all grounds though I may repeat, that the right of the plaintiff to apply, albeit on conditions, to the Inspector of Taxes (with a right of appeal from his decision) to re-open the assessment is still available and I may say that I would have every confidence that it is a power which would be exercised sympathetically even at this late stage.

 

 

Eccles v. Ireland

[1985] IR 545
Finlay C.J. 547
S.C.

1st November, 1985

 

Finlay C.J. delivering the judgment of the Court
This is an appeal by the plaintiffs against the order of the High Court made by Barrington J. on the 12th July, 1985, dismissing their claim against the defendants. Each of the plaintiffs was convicted of capital murder by the Special Criminal Court after a trial commencing in February, 1985. The third, fourth and fifth named defendants were the members of the Court presiding at that trial.
In these proceedings the plaintiffs sought a declaration that s. 39 of the Offences Against the State Act, 1939, (the Act of 1939) is inconsistent with the Constitution, together with consequential declarations that the convictions and the sentences imposed on them are invalid and of no effect.
The plaintiffs’ case rests on the provisions of sub-ss. 2 and 4, of s. 39 of the Act of 1939, which provide as follows:
“(2). Each member of a Special Criminal Court shall be appointed, and be removable at will, by the Government.
(4). The Minister for Finance may pay to every member of a Special Criminal Court such (if any) remuneration and allowances as the said Minister may think proper, and different rates of remuneration and allowances may be so paid to different members of any such Court, or to the members of different such Courts.”
It is submitted that the separate or combined effect of these two sub-sections is to deprive persons sitting as members of the Special Criminal Court at any time, of judicial independence, to the extent and with the effect that persons tried before that Court are deprived of the right to a trial in due course of law guaranteed by Article 38, s. 1 of the Constitution.
The plaintiffs through their counsel expressly disclaimed any allegation or suggestion that the last three named defendants in the conduct of the trial of the plaintiffs acted with any want of judicial independence.
The provisions of the Act of 1939 dealing with the establishment, procedures and powers of the Special Criminal Court were enacted pursuant to the provisions of Article 38, s. 3, of the Constitution which provides:
“1 Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.
2 The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.”
Section 6 of Article 38 provides that:
“The provisions of Articles 34 and 35 of this Constitution shall not apply to any court or tribunal set up under section 3 or section 4 of this Article.”
The impugned sub-sections of s. 39 of the Act of 1939 can not, therefore, be invalidated merely by reason of any inconsistency with the provisions of these two Articles of the Constitution. Article 35 contains constitutional guarantees of the independence of the judiciary, particularly in ss. 2 and 5 thereof which provide:
“2. All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.
5. The remuneration of a judge shall not be reduced during his continuance in office.”
The non-application of these guarantees to persons sitting as members of the Special Criminal Court does not of itself resolve the issue as to whether that Court is so deprived of judicial independence as to render a trial before it of a person on a criminal charge, otherwise than in due course of law.
The contention of the plaintiffs is that the terms of sub-s. 2 of s. 39 are, as a matter of law, to be interpreted as meaning that the Government could exercise an unfettered power to interfere with the proceedings and decisions of the Special Criminal Court by terminating the appointment of its members for the reason only that their decisions did not favour the interests of the executive. It was further submitted that the power of the Minister for Finance to fix the remuneration of members of that Court would also constitute such an unfettered power to influence the decisions of the Court. The Court rejects these submissions as being incorrect in law.
The judgment of this Court in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317, at p. 341 of the report, states as follows:
“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.”
This principle applies to the powers granted to the Government and to the Minister, respectively, by these sub-sections. If either of these authorities were to seek to exercise its power in a manner capable of interfering with the judicial independence of the Court, in the trial of persons charged before it, it would be attempting to frustrate the constitutional right of persons accused before that Court to a trial in due course of law. Any such attempt would be prevented and corrected by the courts established under the Constitution. Whilst, therefore, the Special Criminal Court does not attract the express guarantees of judicial independence contained in Article 35 of the Constitution, it does have, derived from the Constitution, a guarantee of independence in the carrying out of its functions.
The Court is, therefore, satisfied that the plaintiffs have not established that s. 39 of the Act of 1939 is invalid, having regard to the provisions of the Constitution, and this appeal must, therefore, be dismissed.

The State (Michael McEldowney) v District Justice Humphrey Kelleher and The Attorney General

1982 No. 59

Supreme Court

26 July 1983

[1985] I.L.R.M. 10
(Walsh J, Henchy, Griffin, Hederman and McCarthy JJ)

WALSH J

delivered the Judgment of the Court on 26 July 1983 saying: The Street and House to House Collections Act 1962 regulates and controls the collection of money from the public by means of collections in the public streets or by means of collections in the course of house to house visits. It is immaterial whether the object of the collection is charitable or not charitable. S. 3 of the Act makes it a criminal offence to hold or be concerned in the holding of such collection save in accordance with a collection permit granted under the Act. Applications for collection permits are required to be made to the chief superintendent of the Garda Siochana for any locality in which it is proposed to hold such a collection. See s. 5 of the Act. S. 9 provides that a Chief Superintendent shall not grant a collection permit if he is of opinion that the proceeds of the collection or any part thereof would be used for any one of a number of specified and objectionable purposes. One of these is that ‘the proceeds of the collection or any portion thereof would be for the benefit of an object which is unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful’: see s. 9 (b). S. 13 of the Act provides that whenever an application for a permit is refused by a chief superintendent the applicant for the permit may appeal to the District Court against the refusal and if on the hearing of the appeal the court is satisfied having regard to all the circumstances of the case that the application should not have been refused, the court may direct the chief superintendent to grant the collection permit in accordance with the application. The court may also further direct the chief superintendent to attach to the permit such (if any) conditions authorised by the Act as shall appear to the court to be desirable in the public interest. S. 13 (4) provides as follows:

Without prejudice to the jurisdiction of the District Court to disallow on other grounds an appeal under this section, an appeal under this section shall be disallowed, if, on the hearing thereof, a member of the Garda Siochana not below the rank of Inspector states on oath that he has reasonable grounds for believding that the proceeds or any portion of the proceeds of the collection to which the collection permit the subject of such appeal relates will be used:

(a) for the benefit of an object which is unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful, or

(b) in such a manner as to encourage either directly or indirectly the commission of an unlawful act.

The question raised by this case is whether s. 13 (4) is invalid having regard to the provisions of the Constitution because it constitutes an impermissible invasion of the judicial power in that it requires in the circumstances outlined that judicial proceedings within the exclusive competence of the courts are to be determined by the Oireachtas.

In the opinion of this Court that is the effect of subsection (4) and the Court is therefore of the opinion that the subsection is invalid having regard to the provisions of the Constitution.

The case comes to this Court by way of an appeal against the order and judgment of Costello J of 5 February 1982 who took the view that the effect of the subsection was simply to limit the appellate jurisdiction of the District Court rather than an interference with the exercise of the jurisdiction. The learned High Court judge in a detailed review of the relevant cases indicated quite clearly that if he was of opinion that the subsection in question did constitute an interference with the exercise of the judicial power rather than as he found a withdrawal of jurisdiction he would clearly also have held the subsection to be unconstitutional.

It therefore becomes necessary to examine precisely the relevant factors in the case. The facts of the case are not in dispute. The prosecutor who was chairman of a committee of the North Cork Branch of the National H-Block Armagh Committee applied on 23 March 1981 to the chief superintendent at Union Quay, Cork, on 12 March 1981. He made his application on the appropriate form which is Form SCI. The object of the collection as set out in the form was to ‘benefit expenses such as printing advertising and travelling’ of the North Cork Committee of the organisation referred to. In reply he received a letter dated 18 March from Chief Superintendent P. G. Power in the following terms:

Reference your application of 12th instant, in the above connection, I am to inform you that I do not propose to issue a collection permit and that your application is being refused under section 9 (b) of the Street and House to House Collection Act 1962.

These two documents appear to have been the only communications between the prosecutor and the chief superintendent.

By notice of appeal dated 23 March 1981 the prosecutor applied to the District Court at Fermoy by way of appeal against the said refusal of the chief superintendent and requesting the court to grant the collection permit sought.

At the hearing of the appeal the prosecutor gave evidence seeking to rebut the opinion already expressed by the chief superintendent to the effect that the proceeds of the collection would be used wholly or in part ‘(a) for the benefit of an object which was unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful, or (b) in such a manner as to encourage either directly or indirectly the commission of an unlawful act’. Two other witnesses called on behalf of the prosecutor also gave similar evidence. The chief superintendent in question and another witness gave evidence in support of the opinion expressed in the chief superintendent’s letter. The prosecutor had given evidence to the effect that he had no association with or membership of any unlawful organisation.

At this stage apparently someone must have drawn the attention of the District Justice to the provisions of subsection (4) because the District Justice then called the chief superintendent back to the witness box and asked him if he had reasonable grounds to believe that the proceeds of the collection would be used for an unlawful object or contrary to public morality or for the benefit of an unlawful organisation and the chief superintendent stated upon oath that he was of such opinion. The District Justice thereupon stated that he had no alternative but to disallow the appeal. On being questioned by the District Justice the state solicitor conducting the case indicated that he had intended mentioning the subsection in his closing address to the court. The District Justice had inquired why his attention had not been drawn earlier to subsection (4).

The effect of the procedure followed was that the District Justice did not purport to make any adjudication upon the merits of the case nor did he indicate what if any opinion he had formed upon the facts as given in evidence before him by the prosecutor and his witnesses and by the chief superintendent and his witness. He stated his reason for disallowing the appeal was that he was obliged to do so by the subsection in question.

On 12 October 1981 Costello J granted a conditional order of certiorari to the prosecutor directed to the District Justice to show cause why the order on appeal should not be quashed. The order in question does not set out the particular grounds though they were in fact set out in paragraph (16) of the affidavit of the prosecutor in the High Court. The first two deal in effect with the alleged unlawful interference with the judicial power and the next three in effect claim that the procedure followed in the District Court violated the guarantee of fair procedures contained in Article 40 of the Constitution.

In the present case it is unnecessary to consider any of the grounds save the ones dealing with the claimed invasion of the judicial power.

Cause was shown by a motion on notice on the general grounds that the order was not bad on any of the grounds claimed. A second point was raised which was challenging the right of the prosecutor to seek to challenge the constitutionality of the provisions of an Act of the Oireachtas on an application of certiorari.

This latter point is unsustainable. It is well established that a challenge to the constitutionality of provisions of an Act of the Oireachtas may be raised on an application of certiorari. It is therefore necessary to deal only with the ground of whether or not there was an unwarranted invasion of the judicial power by the Oireachtas.

Article 34 requires justice to be administered in courts established by law by judges appointed in the manner provided for by the Constitution. The District Court is one of those courts and the District Justice in question is one of those judges. Save in the limited cases provided for in Article 37 of the Constitution, which has no application in the present case, justiciable controversies may be decided only in the courts when the courts have jurisdiction to do so and when their jurisdiction is invoked. No organ of government in the distribution of powers provided for in Article 6 of the Constitution may determine any such controversy save the organ which exercises the judicial power of government, namely the courts.

Under the Street and House to House Collections Act 1962 the Oireachtas sought to regulate and control the collections in question. It requires an application to be made to a Chief Superintendent of the Garda Siochana and subject to the provisions of the Act, the Chief Superintendent was by s. 6 of the Act obliged to grant a collection permit to every person who had duly applied to him under the Act for the grant of a permit. It gave him power to attach certain conditions, such as those prohibiting collection in particular localities or limiting the number of collectors, or prohibitions on the wearing of masks or fancy dress and a prohibition on the making of collections by collectors in vehicles. The Act, however, went on in s. 9 to direct that the chief superintendent should not grant a collection permit when he had formed any one or more of the six opinions provided for in s. 9. The Act, of course, does not give the chief superintendent a power of arbitrary decision in these matters and he must form a bona fide opinion in accordance with the criteria laid down by this Court in East Donegal Co-operative Livestock Marts Ltd v The Attorney General [1970] IR 317. However, no point arises in this case concerning that aspect of the matter.

S. 13 of the Act, by expressly granting the right of appeal to the District Court against a refusal by a chief superintendent of an application for a collection permit, confers upon the District Court the power by definitive adjudication to decide the matter in accordance with the law, that is to say to decided whether or not the application should have been refused and gives it the power to direct the chief superintendent to grant an applicant a collection permit when it is satisfied that having regard to all the circumstances of the case the application should not have been refused by the chief superintendent. S. 13 (1), which confers this jurisdiction, on the face of it permits such an application to be brought in respect of any one or more of the six grounds upon which the chief superintendent may refuse a collection permit as set out in s. 9 of the Act. If the Oireachtas has desired to exclude from the appellate jurisdiction applications refused on the ground that the chief superintendent was of opinion that the collection would be for the benefit of an unlawful object, or contrary to public morality, or for the benefit of an unlawful organisation it would have in express terms excluded the right to appeal in such cases. If it had done so then, provided the chief superintendent had in such a case acted fairly in accordance with the standards above referred to, that would be the end of the matter. However, subsection (4) of the Act purports to require a District Justice to disallow an appeal once the statement on oath already referred to has been made to him, irrespective of whether he believes it or not and irrespective of whether or not, even in a case where he has heard the evidence, he has arrived at an opinion contrary to that of the chief superintendent.

In the course of the argument it was suggested that if the appropriate member of the Garda Siochana simply stated on oath before any hearing commenced that he had reasonable grounds for his belief the effect would be simply equivalent to that of the court having no jurisdiction in the matter. In the opinion of this Court if the Oireachtas had wanted to treat this as a matter in which no jurisdiction exists it would have said so clearly. Instead it laid down a procedure which permits the appeal to be heard fully and one in which if no evidence at all were offered on behalf of the chief superintendent by a member of the Gardai or other appropriate witness the court would have to grant the permit. Furthermore, it left open to the chief superintendent the choice of allowing the case to go on, having the appellant cross-examined, calling other evidence in rebuttal of the plaintiff’s case and allowing the District Justice to decide it simply upon the merits. The effect of the subsection is that notwithstanding lodging the appeal and the commencement of the hearing of the appeal, a District Justice is compelled, if evidence of a certain opinion is given, to disallow the appeal and all discretion to do otherwise is removed.

It is quite clearly laid down in Buckley & Ors v The Attorney General & Ors [1950] IR 67 that where the effect of a statutory provision is that the dispute is determined by the Oireachtas and not by the court and where the court is required or directed by the Oireachtas to dismiss the appellant’s appeal without forming any opinion as to the rights of the respective parties the provision is clearly invalid having regard to the provisions of the Constitution.

So also the decision in Maher v The Attorney General [1973] IR 140 where a statutory provision which conferred on some particular evidence the quality of conclusiveness in a fact to be determined by the District Justice was held to be invalid having regard to the provisions of the Constitution for the same reason, namely that it was an infringement of the exclusive right of the court to determine the justiciable controversy. In The State (C) v The Minister for Justice and the Attorney General [1967] IR 106 this Court held to be inconsistent with the provisions of the Constitution, as an unwarranted constitutional interference in the judicial domain, a statutory provision which enabled the legislative provision to intervene to adjourn a preliminary investigation on the grounds that the accused was of unsound mind and therefore took the accused away from the court’s disposal setting at naught the court’s remand and effectively adjourned the preliminary investigation sine die. This was described as ‘about as large an intrusion upon court proceedings one could imagine’.

In the opinion of the court the present case falls squarely within the principles enunciated in those decisions. The statute creates a judicial controversy and then purports to compel the court to decide it in a particular way upon a particular statement of opinion being given upon oath as to whether or not a statutory reason for refusing the permit exists, whatever opinion the court may have formed on the issue in question or might have formed if it had heard any evidence upon it.

The learned High Court judge based his judgment upon a decision of this Court The State (O’Rourke) v District Justice Kelly [1983] IR 58. That case dealt with s. 62 (3) of the Housing Act 1966 which deals simply with an application for the issue of a warrant by a District Justice when he has been satisfied that the formalities required by subsection (1) of the same section had been complied with and that a demand for possession has been duly made to the satisfaction of the District Court as such. When the District Justice is so satisfied then the Act provides in subsection (3) that he must issue the warrant. To quote the words of the Chief Justice in that case — ‘it is only following the establishment of the specified matters that the subsection operates’. That Act provides that a District Justice has to be satisfied that the proofs required by the statute have been complied with and so adjudicates and he must then issue the necessary warrant for possession. There is no question of his being compelled to be satisfied that certain formalities were observed simply upon a statement on oath to that effect. Furthermore, it is to be observed that the Housing Act 1966 in the case in question does not provide any form of appeal to the District Court against an application to recover possession of the premises and the procedure provided for is a safety device to ensure that before there is any recovery under the terms of the Act the statutory formalities have been observed. Even so the Act still provides for the necessity of proof of compliance with those statutory requirements so that the District Justice may make his own adjudication upon that issue. The learned High Court judge relied upon this case for the proposition that the fact that a District Court is required to make a mandatory order does not by itself invalidate such provision. He has already stated his opinion to be that the effect of subsection (4) had been to exclude from the jurisdiction of the District Court cases falling under s. 13 (b) once the appropriate statement on oath had been made. For the reasons already given this Court is of opinion that is a misconception of the nature of the proceedings having regard to the statutory provisions which confers the right of appeal. The State (O’Rourke) v District Justice Kelly would be a very apt authority if the Act had provided that the District Justice on being satisfied that the facts of the case were as deposed to by the chief superintendent that he must dismiss the appeal. It is not however, an authority for the proposition that the District Court in the exercise of its judicial functions must adjudicate in a particular way upon the issues in dispute irrespective of the opinion, if any, which has been formed by the District Justice upon the issues before him.

For these reasons this Court will allow the appeal and declare that s. 13 (4) of the Street and House to House Collections Act 1962 is invalid having regard to the provisions of the Constitution. Consequently the cause shown will be disallowed and the order of the District Court will be quashed.

Deighan v Ireland and Ors

[1995] 1 ILRM 88
Flood J
The claim
The plenary summons in this matter claims damages for

(1) assault and battery,
(2) unlawful imprisonment,
(3) malicious prosecution.
These several causes of action arise from events which took place in the High Court in the course of the afternoon of 24 June 1983 and in the succeeding days when the plaintiff and a Mr Matthew Kelly were attached by Costello J for contempt in the face of the court. The said contempt occurred in the course of proceedings before Costello J entitled ‘1981 No. 7508P The High Court, in the matter of Kelly’s CarpetDrome Ltd, In the matter of the Companies Act 1963 and in the matter of an application under s. 297 of the Companies Act 1963’.

The court on its own motion by order dated 27 June 1983 attached the said Matthew Kelly and the plaintiff to answer charges of criminal contempt in the face of the court by interference with the course of justice in the said proceedings on the following count:

(2) That on the afternoon of (Friday, 24 June 1983) Matthew Kelly and Michael Deighan induced the said Brendan McGoldrick, a witness in these proceedings under subpoena, to leave the court and its precincts so as to prevent his being then called on to give evidence.

The court, after hearing evidence, including evidence on behalf of the defendants (including the plaintiff in these proceedings) and of counsel on his behalf, ordered that the plaintiff in these proceedings ‘do stand convicted of the charge in the second count and ordered to be imprisoned for six months without hard labour’ and further refused an application by the plaintiff in these proceedings for bail pending appeal. The said trial before Costello J was a summary trial without a jury.

The plaintiff and his co-defendant in the contempt proceedings appealed to the Supreme Court:

(1) against the said refusal of bail, which appeal was dismissed on 27 July 1983,

(2) against the said order of attachment and committal to prison, judgment in which was given on 19 October 1983.

The judgment of the High Court, and the subsequent judgment of the Supreme Court are reported, sub. nom. ‘In the matter of the trial of Matthew Kelly and Michael J. Deighan for contempt of court’, in [1984] ILRM 424et seq.

The judgment of the Supreme Court, delivered by the Chief Justice, O’Higgins CJ is in the following terms:

This Court is satisfied that in cases of contempt in the face of the court a High Court judge has jurisdiction to deal with the matter summarily and to impose punishment where it is necessary to do so to protect the administration of justice. Assuming for the purposes of this appeal that the allegations made in the present case would, if proved, amount to contempt in the face of the court, this Court is of opinion that, having regard to the sequence in which witnesses gave their evidence and adverting in particular to the fact that Mr McGoldrick had completed his evidence in the Companies Act matter, the necessity for the judge to hear and determine the issue did not exist.

In these circumstances these appeals will be allowed. The court will make an order for the release of the appellants.

The plaintiff in these proceedings before this Court has appeared in person. The pleadings before this Court are apparently drafted by himself.

In the statement of claim in addition to the matters complained of in the plenary summons to which I have referred the plaintiff complains that his imprisonment was a contravention of his constitutional rights, that there has been a breach of the articles of the Convention on Human Rights, a denial of a fair trial, and a denial of an order of habeas corpus. In my view these latter aspects of the matter are in reality extensions of the claims made in the plenary summons which are the essence of the plaintiff’s complaint before this Court.

The defendants filed the defence in this matter on 9 July 1990 which is in essence a traverse of the allegations of fact contained in the statement of claim and a plea in paragraph 4 in terms following:

4. The plaintiff was at all material times in lawful custody from the date of the detention until the date of his release and no right of action lies in respect of the said detention either for the reasons alleged or at all.

By notice of motion dated 22 June 1994 the defendants sought an order to amend their defence in terms following:

1A. The defendants deny that the pleadings of the plaintiff herein disclose any cause of action and will apply for the dismissal of the plaintiff’s claim at the outset of the hearing of the said action.

That motion was returnable for 28 June 1994. In fact on that date the action was listed in the list for jury trials. In the events that happened there was no jury available and the plaintiff consented to the action being tried by a judge sitting alone. The motion and action came on for hearing before me. The motion was grounded on the affidavit of Mr Corcoran, a member of the Chief State Solicitor’s office staff, and the plaintiff also filed a replying affidavit. I indicated and decided that the motion should proceed and I indicated and decided that I would be prepared to grant the amendment and to try a preliminary issue as to whether or not the plaintiff had a cause of action in these proceedings.

As the plaintiff was not legally represented before this Court I think that it is appropriate in the circumstances to tabulate his submissions and contentions:

(1) The essence of the plaintiff’s case as articulated by him is to be found in the second and third paragraphs of the judgment of the Chief Justice in the appeal by the plaintiff to the Supreme Court already referred to. I quote hereunder the passage in question and underline the phrases upon which he lays emphasis.

Assuming for the purpose of this appeal that the allegations made in the present case would, if proved, amount to contempt in the face of the court, this Court is of opinion that having regard to the sequence in which the witnesses gave their evidence and adverting in particular to the fact that Mr McGoldrick had completed his evidence in the Companies Act matter, the necessity for the judge to hear and determine the contempt issue did not exist .

In these circumstances these appeals will be allowed. The court will make an order for the release of the appellants.

He contends that the underlined phrases in reality amount to saying that he never was in fact in contempt of court and he argues that it follows that the trial judge was in error in

(a) charging and trying him for contempt,

(b) by finding him in contempt, and

(c) incarcerating him in jail.

(2) He claims that by reason of his wrongful incarceration, he has been assaulted, and wrongfully imprisoned. He further claims that these wrongful acts sound in damages. He couples with this claim the aggravating factor that he was refused bail in both the High Court and the Supreme Court.

(3) He further complains that the trial judge infringed his constitutional right to defend himself by declining to permit him to call certain witnesses in his defence.

(4) He further contends that as a matter of fact he did not commit the acts alleged to constitute the contempt—this, in my view, is not relevant to a consideration of the preliminary point in issue before me.

(5) He further contends that the government take responsibility for the action of judges and that he has sued the correct defendants.

(6) He contends that he was entitled to compensation for a miscarriage of justice under s. 9 of the Criminal Procedure Act 1993.

(7) He further contends that the State was in breach of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.

He cited the following authorities before this Court:

(1) Maharaj v. A.G. of Trinidad and Tobago (No. 2) (PC) [1979] AC 385.
(2) Byrne v. Ireland [1972] IR 241.
(3) McKenzie v. McKenzie [1970] 3 WLR 472.
(4) McIntyre v. Lewis [1991] IR 121, and
Blackstone’s statement ‘Where there is a legal right there is a legal remedy’.

The defence counsel dealt with each of the plaintiff’s contentions and submissions and in essence submitted that even if the plaintiff’s contentions were well founded (a proposition which he stoutly resisted) a judge was immune from suit and the juridical body ‘Ireland’ in such circumstances could not be rendered liable. Further, the Minister for Justice and the Minister for Finance and the Governor of Mountjoy were not servants or agents of the judge so as to become vicariously liable for any wrongful act of a trial judge acting within jurisdiction.

Before entering into consideration of the plaintiff’s submissions, their relevance and cogency or their correctness in relation to the matters in issue it is of fundamental importance to note, and to enter into this inquiry, in the context of the specific finding by the Supreme Court, namely,

This Court is satisfied that in cases of contempt in the face of the court a High Court judge has jurisdiction to deal with the matter summarily and to impose punishment where it is necessary to do so to protect the administration of justice.

This is a finding that the trial judge, Costello J, was at all times material to the matters presently in issue in this Court acting within jurisdiction.

Turning to the plaintiff’s contentions.

As to (1)
In my opinion the inferences which the plaintiff seeks to draw from the quoted part of the judgment are unduly wide and are not warranted on a consideration of the language used. However, even if I am incorrect in that view, it still is of no avail to the plaintiff because no action is maintainable for anything said or done by a trial judge in the exercise of a jurisdiction which belongs to and is exercisable by him.

The position of a judge acting within jurisdiction, is both authoritatively and informatively stated by Lord Denning in his judgment in Sirros v. Moore [1974] 3 All ER 776 at p. 781.

The liability of the judge
1. Acts within jurisdiction.

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdistion which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden CJ in Garnett v. Ferrand (1827) 6 B & C 611 at p. 625:

This freedom from action and question at suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.

Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low …. They were reinforced in well-chosen language in relation to a county court judge by Kelly CB in Scott v. Stansfield; and to a colonial judge by Lord Esher MR in Anderson v. Gorrie.

Later in the judgment at p. 785 he says:

Though the judge was mistaken, yet he acted judicially and for that reason no action will lie against him. Likewise, no action will lie against the police officers. They are protected in respect of anything they did at his direction, not knowing it was wrong: see London Corporation v. Cox (1867) LR 2 HL 239 at p. 269.

Buckley LJ in the same case at p. 786 concurs with Lord Denning in the words:

A judge is immune from personal liability in respect of any act done in his judicial capacity and within his jurisdiction ….

In my opinion it follows that if the trial judge is not liable in damages for any erroneous decision made by him, the juridical body ‘Ireland’ cannot in any circumstances be rendered liable if the only basis upon which such a proposition could be founded is vicarious liability. Vicarious liability cannot arise unless there is a primary liability. Again vicarious liability is a concept related to the law of torts and it is certainly arguable whether the events in this case could ever be regarded as a tort.

The plaintiff called in aid of his argument the decision of the Privy Council in England in Maharaj v. Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385. That case, however is not of any assistance to the plaintiff because he depends on a specific provision under s. 6(1) of the Constitution of Trinidad and Tobago and no such corresponding provision exists in Ireland or in our Constitution. In the dissenting judgment of Lord Hailsham in the Maharaj case he deals with precisely the problem to which I have just referred in these words (p. 409):

I must add that I find it difficult to accommodate within the concepts of the law a type of liability for damages for the wrong of another when the wrongdoer himself is under no liability at all and the wrong itself is not a tort or delict.

As to (2), (3), and (5)
The matters submitted by the plaintiff under these headings are, in my view, covered by what I have just said in relation to the liability of a judge. It is certainly quite clear that the Governor of Mountjoy was acting correctly on foot of a warrant which on its face empowered him to do what he was directed to do and he certainly could not be made liable in damages. The Minister for Finance and the Minister for Justice are not servants of the judiciary and could not have vicarious liability for any act of the judiciary.

As to (6)
S. 9 of the Criminal Procedure Act 1993 quite clearly does not apply to the plaintiff’s case.

As to (7)
The Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of this country and accordingly is not a ground which can give rise to an action in this country.

For the foregoing reasons I am satisfied that the plaintiff has not shown a maintainable cause of action in his pleadings nor do the facts upon which he founds the pleadings give rise to a maintainable cause of action and I accordingly accede to the defence application on this preliminary point and dismiss the plaintiff’s case.

Dublin Wellwoman Centre Ltd and Ors v Ireland and Ors

 

[1995] 1 ILRM 408
Denham J
This is an appeal by the third named defendant, the Society for Protection of Unborn Children (Ireland) Ltd, hereinafter referred to as the appellant, from the judgment and order of the High Court delivered on 12 October 1994 refusing the appellant’s application requesting the learned High Court judge to discharge herself from hearing and determining the proceedings inter partes herein.

History
The first named plaintiff is a company limited by guarantee, incorporated in 1977 and at all material times providing a range of services relating to counselling on marriage, family planning, procreation and health. The second and third named plaintiffs are each a member, director and employee of the first named plaintiff.

From its incorporation until 19 December 1986 the first named plaintiff provided non-directive counselling to pregnant women resident within the State. Abortion or termination of pregnancy was one of the options liable to be discussed during the said counselling and information provided to the said women regarding the availability of abortion services lawfully available within member states of the European Community, including informing them of the identity and location and the method of communication with a specified clinic or clinics.

On or about 28 June 1985 the appellant instituted proceedings against, inter alia, the first named plaintiff seeking a declaration that the activities of the first named plaintiff in counselling pregnant women within the State as aforesaid, was unlawful having regard to Article 40.3.3° of the Constitution of Ireland. By order of the High Court dated 24 September 1986 the said proceedings were converted into a relator action brought at the instance of the second named defendant. By order of the High Court dated 19 December 1986 and by a varied order of the Supreme Court dated 16 March 1988, the first named plaintiff its servants or agents were perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

On 23 December 1992 the President of Ireland signed an Act entitled the Fourteenth Amendment of the Constitution Act 1992 following and consequent upon a referendum of the people of Ireland on 28 November 1992. Article 40.3.3° of the Constitution as amended by the addition of the 13th and 14th Amendments now states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

In 1992 Carroll J was chairwoman of the Second Commission on the Status of Women hereinafter referred to as the commission which made a statement and representations which the appellant submits are relevant to this case. On 12 March 1992, in the context of the run up to the referendum on the Maastricht Treaty and the government’s announcement that it intended to seek an amendment to the Protocol to provide for the freedom to travel, a letter was written by Carroll J in her capacity as chairwoman of the commission:

CSW. 284

12 March 1992

Mr Albert Reynolds, T.D.,

Taoiseach.

Dear Taoiseach,

As part of its task of drawing up recommendations to the government on matters affecting women’s lives the Commission on the Status of Women has been considering the issue of abortion, with particular reference to the ban on counselling and information deriving from the Supreme Court decisions under the Eighth Amendment to the Constitution.

The case of the 14 year old girl and the Supreme Court decision on foot of the case (5 March 1992, Attorney General v. X and others) underlines how serious and complex the issues arising in this area are.

Now that the individual circumstances of that case have been dealt with, the most urgent aspect for consideration is the Protocol entered by Ireland to the Treaty on European Union (the Maastricht Treaty) and the treaties establishing the European Communities.

The referendum to approve the Maastricht Treaty risks being distorted by people voting against the treaty, if they consider that the rights they presently enjoy to apply to the European Court of Justice are being taken away from them.

The commission has deliberately avoided comment on topical issues as they have arisen but because the implications of the Irish Protocol to the treaties are of such importance to Irish women and because of the urgency involved we feel it is incumbent on us to comment on this matter.

The basic premise of our statement is that women should have the right to avail of counselling and information as well as the right to travel. Indeed, if counselling were permissible some women might well decide against a termination in favour of another option.

When drafting this statement the intention was to circulate it for discussion at the commission’s forthcoming meeting on 19 March 1992. However, in view of the urgency of the matter it seems imperative that it should issue immediately. Of the nineteen members of the commission, fifteen have approved this statement. It has not proved possible to contact three members in the short time available, and one member, Dr Finola Kennedy, is not in agreement with the statement being issued. Dr Kennedy’s statement is enclosed as an appendix.

The Commission on the Status of Women is making this, our second statement to government, in the hope that it may usefully contribute to resolution of a very difficult problem.

Yours sincerely,

Mella Carroll

Chairwoman, Commission on the Status Women

The statement stated:

12 March 1992

COMMISSION ON THE STATUS OF WOMEN SECOND STATEMENT TO GOVERNMENT

The decision of the Supreme Court in Attorney General v. X (5 March 1992) affirmed the right of a mother to a medical termination of pregnancy where as a matter of probability there is a real and substantial risk to her life if the pregnancy continues. In the same case the Supreme Court decided by a three-two majority that the mother of an unborn child did not have an unqualified right to travel and that she could be restrained by injunction from travelling abroad for the purpose of terminating the pregnancy.

The protocol to the Maastricht Treaty provides:

… Nothing in the treaty on European Union, or in the treaties establishing the European Communities, or in the treaties or Acts modifying or supplementing those treaties, shall affect the application in Ireland of Article 40.3.3° of the Constitution of Ireland ….

It appears to be generally accepted that the effect of this protocol would be to remove the present right of litigants to refer to the European Court of Justice any apparent conflict between national law and European law in relation to the provision of medical termination of pregnancy. This service is a service within the meaning of Article 60 of the Treaty of Rome, SPUC v. Grogan, ECJ, 4 October 1991 ([1991] 3 CMLR 849).

The government has announced that it intends to seek an amendment to the protocol to provide for the right of freedom to travel instead of deleting it in its entirety.

The commission wishes to make the point that an amendment confined to the right to travel is too limited. Any amendment to the protocol should also provide for freedom for counselling and freedom of information because of past Supreme Court decisions.

The Supreme Court has decided in Attorney General (SPUC) v. Open Door Counselling Ltd ([1988] IR 593) that non-directive counselling to pregnant women is forbidden by Article 40.3.3° of the Constitution.

It has been submitted to the commission, and the commission accepts, that following that judgment the lack of counselling, even from a GP, and the difficulty in getting information has resulted in women going to England for termination, without any counselling. Many of these women are at an advanced stage of pregnancy. If they had decided to consider the possibility of termination further, at least they would have had the opportunity to reflect at an early stage of the pregnancy on the other options open to them.

At present, the opportunity for reflection after counselling given in the clinics in England is minimal. Having gone that far, the impetus for the individual woman is to complete the purpose of the journey and go ahead with the termination.

The government chose to hold three referenda on 26 November 1992 the result of which was the amended Article 40.3.3° as set out hereinbefore. The commission in its final report stated:

11.3.14 Counselling and information.

In 1991, 4, 152 women from the Republic of Ireland had abortions in England, up from 4,063 in 1990. The Republic accounts for more than one-third of the non-resident abortions — more than any other state. The rise in Irish figures goes against the trend of a decline in abortions in England and Wales both among residents and non-residents as a whole. In view of the reported incidence of women travelling for the purposes of an abortion, the commission believes that non-directive counselling should be made available on a countrywide basis now that the constitutional ban on freedom of information has been altered. The commission recommended to the government on 3 September 1992 that non-directive counselling should be made available as soon as it was legally possible. Since the amendment on information has been passed, this recommendation is no longer necessary. When legislation to implement the amendment is introduced, unreasonable restrictions should not be imposed. The aim should be that the appropriate information should be available to those who require it.

Pleadings
The essence of the action to be heard in the High Court is the interpretation of Article 40.3.3° of the Constitution as to information on abortion services lawfully available in other member states of the European Union. The plaintiffs seek:

A declaration that the plaintiffs, their servants or agents, may make available within the State information relating to abortion services lawfully available in another member state of the European Community and may inform pregnant women of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

This Court has been informed that there will be no oral evidence at the trial of the action in the High Court but that all facts are set out in the pleadings.

The essence of the case is the meaning and extent of the right to information in Article 40.3.3°. The notice for particulars and the relevant replies thereto set out the issues. These include, inter alia, claims as to the persons to whom it is submitted the plaintiffs may make available the information; whether the information comprehends advertising to the public at large or sectoral advertising; whether such information is to be provided gratis and if not by what criteria will the fee be determined; whether the information now sought to be given is equivalent to or exceeds the non-directive counselling to pregnant women resident in the State provided by the plaintiffs from 1977 until 19 December 1986; also the elements which constitute ‘non-directive counselling to pregnant women resident within the State’ will be litigated.

The High Court
On 12 October 1994 the plaintiffs’ action seeking a declaration as to the giving of information as set out above came into the list for hearing in the High Court. By chance the judge in the relevant court was Carroll J. Counsel for the appellant applied to the learned trial judge to discharge herself on the grounds that her activities as chairwoman for the Commission on the Status of Women were calculated to create a reasonable apprehension of bias in respect of the matters in issue in the proceedings.

In the High Court the Attorney General through his counsel indicated that he did not intend to make any submission and would abide by the order of the court. He has not appealed against the order of the High Court. Also in this Court the Attorney General felt that the proper course was to abide by the court order and not to take the side of either party.

Mr Hardiman SC, for the plaintiffs, stated that they had attended in court on 12 October 1994 and were met with the objection to the learned trial judge. They were ready and wished to have the case heard. They did not regard as sound the allegation of bias and so they opposed such an application then and did so before this Court.

There was legal argument in the High Court. After hearing submissions in the matter Carroll J reserved her decision until after lunch when she gave a written judgment. She stated:

When I was sworn in fourteen years ago I made a declaration in the presence of Almighty God that I would duly and faithfully to the best of my knowledge and power execute my office as a judge of the High Court without fear, favour, affection or ill will towards any man and that I would uphold the Constitution. I have always followed that declaration to the best of my ability.

Today I am told that one defendant believes that I am biased, and the other defendant expresses no opinion. I did not read the papers in this case before today and it is fortuitous that I happen to be sitting in this Court this week to hear this case.

The essence of the action concerns the interpretation of the Constitution ….

Having referred, inter alia, to the historical facts leading up to the constitutional amendments to Article 40.3.3° on 26 November 1992 and the commission’s final report she concluded:

As I see it, the perceived bias referred to by Mr Kelly SC has no basis. I know I do not have a bias. I will hear this case with an open mind and I will interpret the Constitution to the best of my ability, but I refuse to disqualify myself on the ground that I have a bias in this matter because I know that I do not.

Issues
There are two issues for determination before this Court. First, as to whether or not an appeal lies at this stage from Carroll J to the Supreme Court. Mr Hardiman SC for the plaintiffs submitted that a refusal of a judge to discharge herself was not a decision which could be the subject of an appeal apart from the substantive issue.

Secondly, if the judgment of Carroll J is capable of being appealed, the question is whether her decision on the issue of bias was correct.

Decision pursuant to Article 34.4.3°
The first issue is whether the determination of Carroll J in this matter was a ‘decision’ which may be appealed to the Supreme Court.

In this case the order of the High Court of 12 October 1994 states:

This action coming on for hearing this day in the presence of counsel for the respective parties

Whereupon and on reading the pleadings herein and upon the application of counsel for the added defendant [the appellant herein] that the judge discharge herself from the hearing of this action

And upon hearing what was offered by said counsel and by counsel for the plaintiffs and by counsel for the first and second named defendants

It is ordered that the said application be and the same is hereby refused

And the added defendant [the appellant herein] by its counsel undertaking to serve a notice of appeal forthwith against this order and duly enter same

It is ordered that the said added defendant [the appellant herein] do have liberty to proceed with said notice of appeal ….

The reserved written judgment of the learned High Court judge was opened in full to this Court and a portion has been quoted previously herein.

Article 34.4.3° states:

The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

No exceptions or regulations apply to the determination of the High Court in this case and thus it is essentially an issue as to whether or not it was a ‘decision’ within Article 34.4.3°.

The ordinary meaning of the word ‘decision’ is defined in the Oxford English Dictionary as:

The action of deciding (a contest, controversy, question, etc.), settlement, determination.

The legal meaning of the word ‘decision’ in Article 34.4.3° was considered by the Supreme Court in Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan [1989] IR 753; [1990] ILRM 350 where Finlay CJ stated at pp. 763/354–5:

No mere absence of formal words from a High Court order could be permitted to remove from the appellate jurisdiction of this Court a determination of a High Court judge which affects one of the parties involved and has all the characteristics of a decision.

In this case there were formal words — the order and a reserved judgment. There was a determination by a High Court judge of an issue. The determination affected the interest of one of the parties. Carroll J in refusing to discharge herself from the case between the parties on the basis that there was no bias made a decision, against the application of one party, on constitutional justice. The issue of bias goes to the root of constitutional justice — to the constitutional right to a fair and impartial hearing. The issue is one to be determined in accordance with Irish law and the Constitution.

The determination had all the characteristics of a decision. The preliminary issue had been raised before the High Court, arguments were submitted on behalf of opposing parties, the law and the Constitution were referred to, the judge reserved her decision, and then delivered a written judgment in which she gave her determination and the reasons therefor. Thereafter a High Court order on the issue, and regulating the appeal, was drawn up.

The fact that it is an issue preliminary to a trial does not divest it of the status of a ‘decision’ under Article 34.4.3°. Preliminary matters, such as for example a request for an adjournment, are not infrequently appealed to this Court. It has been the practice of this Court, quite rightly in my view, to treat such as a decision from which an appeal may lie. Such a decision is analogous to the decision in this case.

It is appropriate that the issue be tried now rather than after a full hearing of the substantive action in the High Court. It is a decision on an interlocutory matter in the course of an action.

I am satisfied that in substance and in form, the judgment and order of the High Court in this case are a ‘decision’ pursuant to Article 34.4.3° of the Constitution. Consequently an appeal lies therefrom to the Supreme Court.

Bias
In the general sense ‘bias’ is an emotive word. It is defined in the Oxford English Dictionary as:

An inclination, leaning, tendency, bent, a preponderating disposition or propensity, predisposition, predeliction, prejudice.

It is also a technical legal term and as such has been defined by the courts in many cases. The concept of bias developed through cases considering material interest. It also arose in cases on pre-judgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this wider concept. First, that there should be no actual bias, i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice. The idea was expressed in R. v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 and at p. 259 Lord Hewart CJ made his famous statement:

… a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

Of that concept O’Flaherty J in O’Reilly v. Cassidy [1995] 1 ILRM 306 stated at p. 310:

While that was articulated on that particular occasion it is probably a concept as old as the common law itself and it is in perfect harmony with our constitutional situation.

It is a concept that requires the absence of actual bias which I shall call ‘subjective bias’, and the absence of what a reasonable person in the circumstances may perceive as bias, which I shall call ‘objective bias’. Lack of bias in either form underpins the administration of justice.

The question of subjective bias was not raised by counsel for the appellant in the High Court. On the other hand it was submitted there that the learned High Court judge’s position as chairwoman of the Commission on the Status of Women, and the steps which she took as such, manifested in the letter, statement and report of the commission set out previously, were such as to raise an apprehension of bias by a reasonable person, i.e. objective bias.

The text
The appropriate test was recently applied by this Court in O’Reilly v. Cassidy (ibid.) where Finlay CJ at p. 309 of his judgment stated:

The second matter on which I am satisfied an arguable ground has been established is that the daughter of the learned Circuit Court judge who was sitting to try the case appeared on behalf of the State and on behalf of the garda objector. An objection to that fact was taken on behalf of the applicant and that is fundamental in my view. If no objection is taken to any relationship between an advocate and a judge there could be no conceivable impropriety in the judge continuing to hear the case. There is no suggestion being made in this case, and I have seen a transcript of the hearing as one of the documents, of any bias being displayed by the judge at all of any description, nor does Mr McCullough make the suggestion of bias. The suggestion he makes is that the test to be applied was, would a reasonable person apprehend that there might be bias because of that relationship. Given the applicant’s very considerable stake involved in the decision in the case, having instructed her counsel to object to the relationship, I am satisfied that the court possibly should have discontinued the matter and either got another judge to do it or take some step. I am not saying that must be done, I am not saying that should be done but I think this is an arguable ground and it is appropriate that it should be included in the grounds on which judicial review should be commenced.

In the above ex tempore judgment Finlay CJ was applying a similar test to that which he had previously expounded in O’Neill v. Beaumont Hospital Board [1990] ILRM 419 where he stated at p. 438:

The bias alleged in this case is a bias consisting of pre-judgment. The plaintiff’s case, in very brief summary, is that a consideration of the question of the making of the decision as to the continuance or termination of his service as a consultant in the hospital cannot fairly be carried out by reason of the fact that the persons who should carry it out have pre-judged his case. There is no suggestion of personal animosity, personal gain or personal self-interest in any member of the board as a form of bias. The sole form of bias alleged is pre-judgment ….

I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different from the standard which was applied in the High Court, is the question as to whether a person in the position of the plaintiff, Mr O’Neill, in this case who was a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the board. That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description.

That standard is applicable to this case. In the High Court there was no suggestion of personal favour or personal interest, i.e. subjective bias of the learned High Court judge. The actual state of mind of the judge was and is not in issue. What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge on issues which are at the kernel of this case.

The facts as set out fully hereinbefore in this judgment indicated a situation where the learned High Court judge in her capacity as chairwoman of the Commission on the Status of Women has voiced a view on the constitutional article in question. Obviously this was not in her capacity as a judge, nor was it a legal decision. However, in a letter to the Taoiseach, a statement, and the report the issue is referred to, albeit superficially and with brevity.

This concept, somewhat differently phrased, is fundamentally that stated in 1968 by Lord Denning MR in Metropolitan Properties Co. (FGC) Ltd v. Lannon [1969] 1 QB 577 at p. 599:

… In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand …. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.

No actual bias
I am quite satisfied that the learned High Court judge was not lobbying on this issue, as submitted by counsel for the appellant. I am quite satisfied that she had no actual bias and I accept her judgment in full on the issue of subjective bias. However, the judgment did not address the matter of reasonably apprehended bias, i.e. objective bias. It is on this issue that the High Court erred.

There is no suggestion or finding that the court gave or would have given anything but an honest answer. But the test is objective; not whether the learned High Court judge considered she was or was not biased; nor whether the appellant considered the judge was or was not biased; but whether a person in the position of the appellant in this case, a reasonable person, should apprehend that his chance of a fair and independent hearing by reason of the actions by the learned High Court judge in her capacity as chairwoman of the Commission on the Status of Women would prevent a completely fair and independent hearing of the issues which arise. The apprehension of the reasonable person in the position of the appellant is what has to be considered.

Judicial practice
It has long been a practice of the judiciary in this State not to act as a judge in a case where they have an interest, or where there are grounds on which a reasonable person might fear that in respect of the issues involved he would not get an independent hearing. This is a convention which the learned High Court judge has herself practised in not unrelated circumstances previously.

 

Perception of the Administration of Justice
The concept of the perception of the administration of justice, as well as the content of justice is as important today as in years gone by. The statement of Lord Hewart CJ is as relevant today as when it was made in 1923. With the development of the modern communications media and an increasingly educated and enquiring society the public perception of the impartiality of the courts is a cornerstone of the administration of justice in our constitutional democracy.

Before the High Court the issue will be the interpretation of the 14th Amendment to the Constitution. The appellant is putting forward a meaning that is apparently different to that maintained by the plaintiffs. It may be that the only contradictor to the plaintiffs’ action will be the appellant. The view of the plaintiffs may be consistent with the second statement to government of the Commission on the Status of Women — which stated:

The commission wishes to make the point that an amendment confined to the right to travel is too limited. Any amendment to the protocol should also provide for freedom for counselling and freedom of information because of past Supreme Court decisions.

The Supreme Court has decided in Attorney General (SPUC) v. Open Door Counselling Ltd [1988] IR 593 that non-directive counselling to pregnant women is forbidden by Article 40.3.3° of the Constitution.

It has been submitted to the commission, and the commission accepts, that following that judgment the lack of counselling even from a GP and the difficulty in getting information has resulted in women going to England for termination, without any counselling. Many of these women are at an advanced stage of pregnancy. If they had access to counselling, it might have enabled them to decide to complete the pregnancy. If they had decided to consider the possibility of termination further, at least they would have had the opportunity to reflect at an early stage of the pregnancy on the other options open to them.

The majority report of the commission recommended:

That any amendments to the Maastricht protocol should provide not only for freedom of travel but also for freedom to give and receive counselling and for freedom of information.

Of the amendments to Article 40.3.3° of the Constitution in 1992 the learned High Court judge said in her reserved judgment herein:

The commission in its final report said that the result achieved what the commission had recommended in one of its alternatives, and the only recommendation made by the commission was that the Oireachtas should pass legislation as recommended in Chapter 11 (paragraph 11.6.1.). So the commission accepted the constitutional position as it was when it presented its final report and made no recommendations about any further amendments. The commission cannot therefore be labelled as not supporting the constitutional position.

The appellant now comes to court seeking an interpretation of Article 40.3.3° and the provision on information therein referred to.

Abortion
The nature of the matter for consideration in this case is of particular importance and relevance. The issues of abortion and the related amendments regarding travel and information are perhaps the most emotive and divisive topics in our community today. The courts have to be ever-vigilant to protect constitutional rights, constitutional interpretation, and justice, and to be seen to be so.

It is a fundamental and age old concept in common law that justice must manifestly and visibly be seen to be done. It is expressed now as constitutional justice. In cases such as this where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of pre-existing non-judicial position and actions, it would be contrary to constitutional justice to proceed with a trial.

I am satisfied that the learned High Court judge should have discharged herself. There is no question of a personal interest of the learned High Court judge — no subjective bias. However, applying the test set out and the conclusions reached herein the appellant has made out the case of reasonably apprehended bias in the circumstances — objective bias. Consequently I would allow the appeal.

 

D. (E.)(A ward of court),

In Re [1998] IESC 4 (4th March, 1998)

THE SUPREME COURT

HAMILTON C.J.
KEANE J.
MURPHY J.
265/97 & 7/98

IN RE E.D.

(A Ward of Court)

Ex-Tempore Ruling delivered on the 4th day of March 1998 by Hamilton C.J.

1. This is an appeal brought by the Appellant who is the daughter of E.D. who was admitted to Wardship on the 15th May 1995 against a number of orders made by the President of the High Court in the exercise of his jurisdiction with regard to the care and maintenance of Wards which come under his protection. Originally this protection was vested in the Lord Chancellor of England and when we achieved our independence in 1922 it was by virtue of the Courts Act, 1922 vested in the Chief Justice. The Chief Justice was relieved of that responsibility by the Courts of Justice Act, 1936 when the jurisdiction previously exercised by the Chief Justice and the Chancellor was vested in the High Court.

(2)

2. By the Courts Establishment Act of 1961 the said jurisdiction was vested in the President of the High Court or any Judge nominated by him for the purpose of exercising that jurisdiction.

3. Invariably it has been the practice that whenever the President of the High Court is available he exercises that jurisdiction and only on the rare occasions when he is not available is that responsibility delegated by him to another Judge of the High Court.

4. It is perfectly clear that the President of the High Court has a very real responsibility to Wards of Court which come under his care and protection and in order to exercise that jurisdiction properly he has a wide discretion which of course has to be exercised judicially in first of all in determining whether the medical evidence is available before he makes an order admitting a person to wardship and also to deal with the care and maintenance of a Ward who comes under his protection when he is admitted to wardship. The exercise of that jurisdiction is then that there is a committee appointed, usually a committee of the person and of the property but from time to time it may be necessary to split that responsibility of that committee and have a committee of the person and a committee in charge of the property. But I merely illustrate this for the purpose

(3)

of giving an indication of the responsibilities of the President and the discretion that he has in order to enable him to fulfil that responsibility.

5. In this particular case, he made a number of orders which as I say have been appealed on by the Appellant who is a daughter of the Ward and is obviously very attached to her mother and is concerned that she obtain the proper care and attention and she has conflicting views as to what is required in order to ensure that her mother is properly cared for in her, obviously declining years, she is now I think 79 years of age.

6. Certain disputes undoubtedly arose between the Appellant and the Committee and also certain disputes with regard to the staff and the administration of the hospital as to the treatment of her mother and she brought an application for an order directing the Committee to make arrangements to transfer the Ward from the Royal Hospital to what she described as in her motion as a more caring institution. She also brought a notice of motion seeking an order directing that the Ward be examined independently by a Dr. Marjorie Young and Dr. Michael Carty and also that she be sent for examination to the Diabetic Unit in St. Vincent’s Hospital.

(4)

7. The Committee brought a motion on the 5th December 1997 for an order restraining the Appellant from visiting the Ward, from contacting the Ward in any way, from contacting the hospital, from entering the grounds for the purpose of visiting her, from contacting the staff and from circulating letters and directing that future enquiries which the Appellant wished to make should be made to her sister and the Committee. These orders were made by the learned trial judge having considered the affidavits before him and I have no doubt whatsoever that all the relevant affidavits were before the President, that he gave consideration to them before he made his orders. There was a further three motions. It is quite clear as I say that the learned President has the discretion in connection with all matters relating to the care and maintenance of a Ward and that there was evidence before him by affidavit upon which he was entitled to make these orders.

8. The Appellant relies strongly on the fact that the learned President was a Governor of the Royal Hospital and has submitted that by reason of his being such Governor that he should have disqualified himself from hearing the application because involved in it were various criticisms by the Appellant with regard to the behaviour of the staff and because there were affidavits from members of the staff dealing with the alleged behaviour of

(5)

9. Ms. D on the occasions of her visits. She has submitted that she, having learned that he was a Governor of the Hospital, feels that he was biased in favour of the hospital and against her and has referred the Court to a number of cases before this Court including Gates and the R.D.S. , High Court (Shanley J) 31 July 1997, and the Dublin Wellwoman Centre v SPUC [1995] 1 ILRM 408, as indicating that a judge who has a particular interest should disqualify himself or herself from hearing proceedings.

10. It is quite clear from the judgment and the record of the judgment that Mr. Justice Costello freely and openly acknowledged that he was a Governor of the Hospital and clearly stated that he would not allow that in any way to affect his judgment. The motivating force of that judgment was the welfare of the Ward. While the Appellant feels and relies on the fact that she feels that he was biased against her, the question of bias must be perceived on the basis of not what one particular person might consider but what a reasonable person would consider and I am satisfied that no reasonable person would be justified in considering that the President of the High Court merely because he was a Governor of the Hospital and because he is engaged in many charities would allow himself to be affected by that fact in reaching the determination which he did on each of the motions.

(6)

11. For these reasons I am satisfied that the orders made by him were within his jurisdiction as President of the High Court, that there was evidence which justified him in exercising his discretion in this manner and I am further satisfied that there was no question good, bad or indifferent of any bias by the learned President because of the fact that he was Governor of the Royal Hospital against the Appellant.

12. Consequently, I would dismiss the appeal.

Ryanair Ltd v Terravision London Finance Ltd

[2011] IEHC 244

JUDGMENT of Mr. Justice Kelly delivered on the 30th day of June, 2011
This Action
On 18th January, 2010, the plaintiff (Ryanair) began this action by the issue of a summary summons. It sought to recover €1,809,758.16 from the defendant (Terravision). By the time the statement of claim was delivered less than four months later, Ryanair’s claim had been increased to €8,407,614.71 less a sum of STG£986,849.90.

In the meantime, I made orders in favour of Ryanair admitting the proceedings to the Commercial List and, inter alia, fixed a date for the hearing of an application for summary judgment against Terravision. When Ryanair received Terravision’s replying affidavit, it became apparent to it that it had no prospect of obtaining summary judgment and so, on Ryanair’s application, I vacated the summary judgment hearing date, adjourned the action for plenary hearing and directed an exchange of pleadings. Terravision sought costs in respect of that aborted hearing but I declined to award them against Ryanair and made them costs in the cause.

Having received the statement of claim of 4th May, 2010, with the much increased claim, Terravision sought leave to bring a motion to strike out that pleading in whole or in part. In accordance with the normal case management of litigation, I gave leave to bring such a motion returnable for hearing at the end of June 2010.

On 5th July, 2010, Ryanair issued the motion which is the subject of this judgment.

The motion seeks that I should discharge myself from:-

“ hearing and determining the defendant’s application to have all or part of Ryanair’s statement of claim set aside or struck out which is pending before the courts; and
hearing and determining any further applications and/or the substantive hearing in these proceedings.”

The basis for the application is also stated on the notice of motion, it is “that there is a reasonable apprehension of bias due to his conduct, and/or his beliefs expressed, towards Ryanair in other proceedings”.
It is immediately apparent that no allegation of actual bias is made. Indeed, counsel on behalf of Ryanair made that very clear from the outset of the hearing. What is relied on is what is called objective bias. That is a concept quite different to actual bias and I will consider it in some detail later in this judgment.

Secondly, it is clear from the terms of the notice of motion that the matters relied upon to support this claim do not arise from anything that has occurred in the present litigation.

The principal basis for the application arises from a sentence at the conclusion of a reserved judgment which I delivered in the case of Ryanair Limited v. Commissioner for Aviation Regulation [2010] IEHC 220, (the judicial review proceedings) where I said:-

“Having had to consider Ryanair’s untruths to the Court, its untruths about the Court and its untruths about the Minister, one has to conclude that the truth and Ryanair are uncomfortable bedfellows.”

The Judicial Review Proceedings
My judgment in the judicial review proceedings was delivered on 4th June, 2010.
The case involved an application by Ryanair for leave to apply for judicial review against a determination of the Commission for Aviation Regulation. That determination set maximum levels of airport charges at Dublin Airport for the years 2010 – 2014.

It is not necessary to rehearse in detail the matter which I already considered in my judgment in that case, save to record the following.

In the course of hearing this motion, Ryanair’s counsel expressly accepted that I was correct in my earlier judgment that Ryanair had, indeed, been untruthful to the court, had been untruthful about the court and had been untruthful about the Minister. A number of these untruths were contained in communications made by the Chief Executive of Ryanair (Mr. O’Leary). Others were contained in affidavits sworn on behalf of Ryanair but in circumstances where the deponents had not been informed of the true position which Mr. O’Leary knew but failed to tell them. The affidavits sworn by them misled the court and misled the other parties to the litigation.

All of this having been accepted by Ryanair, in the course of discussion with counsel I asked the following question concerning the conclusion which I expressed at the end of my judgment in the judicial review proceedings and to which exception is now taken.

“Question: What is wrong with that conclusion when you accept that Ryanair told untruths to the court, told untruths about the court and told untruths about the Minister?
Answer: Because that reference is to Ryanair and all its employees and this Court had evidence before it and formed the view that informs that decision on the evidence of Mr. O’Leary, the individual who wrote the letter, who apologised to the court. If the court had said at that point in time that Mr. O’Leary was the individual and it had formed a view on (sic) in relation to the credibility of or otherwise of that witness, that is one thing but what the court did, in my respectful submission, was to globalise that to the entirety of an organisation where there is (sic) 8,000 employees, 7,999 who are not involved in that particular correspondence and that letter that the court rightly identifies is the basis for the decision was a letter written and sent by Mr. O’Leary.

Question: Well, could any reasonable person conclude in the context of this judgment that when that comment was made that it affects every Ryanair employee, pilot, airhostess, ground handler whatever it might. Could any reasonable person so conclude when one reads the judgment in context, quite apart from isolating one clause in one sentence.

Answer: Whether I can form that view or this Court forms that view is not the appropriate approach.”

Ryanair does not complain that the comment was not justified. Indeed it would be difficult to so complain given the serious untruths involved. Rather the complaint is that by referring to Ryanair I was, to use counsel’s expression, “globalising” my conclusion to cover “the entirety of an organisation where there is (sic) 8,000 employees”.
From counsel’s response, which I have set out in full above, it appears that I if I had commented that one had to conclude that the truth and Mr. O’Leary were uncomfortable bedfellows, this application would not have resulted. In order to be sure that that was indeed what counsel was submitting I put precisely that question to him. Here is the question and his answer.

“Question: So if, instead of saying “Ryanair”, I had said at the end of the judgment that Mr. O’Leary and the truth are uncomfortable bed fellows, there would not be this application, is that what you are saying?
Answer: That is a reasonable question and one I would wish not to have to answer, because it is not one that I had to trouble myself with. And avoiding the question, I know, the only matter I had to address my mind to was what was actually said by the court.

Because to date, to get to this point in time, and I do not want to get – Ryanair at no stage prior to this, and there have been many cases in which Ryanair has been involved, has it ever brought an application prior to this before for your Lordship not to hear the matter. And your Lordship has heard many cases. And I was at pains, both in the submission and the opening, to indicate to the court that the view furnished to Ryanair was the fact that a judge has in the past held one way or another relative to that particular entity is not a grounds of itself to base any application for a recusal.

And it is only and simply because of the issue that has subsequently arose (sic) in relation to the reference to Ryanair as the party which the court identified as being the issue in relation to the truth, not, as I say, Mr. O’Leary.”

That response appears to confirm that had I made my comments concerning Mr. O’Leary and not Ryanair, this application would not have been brought.
Despite the fact that it was Mr. O’Leary who was personally responsible for the untruths in question (a fact which is obvious on a fair reading of my judgment in the judicial review proceedings) the comment to which exception is taken did not name him.

The reason why I did not personalise the comment in question to Mr. O’Leary was because on each occasion of his untruthfulness he was acting in his capacity as the Chief Executive of Ryanair. He acted at all times on behalf of Ryanair and in that company’s name.

For all I know Mr. O’Leary may be a man of complete probity when dealing with his personal affairs. Perhaps he would not dream of uttering an untruth when dealing with such matters. I simply do not know because I decide cases on evidence and there was no evidence as to his personal affairs on his approach to them. In such circumstances I do not believe that it would have been appropriate or fair to make the comment in the form which Ryanair finds unobjectionable.
Objective Bias
Much judicial ink has been expended both in this jurisdiction and abroad in discussing the concept of objective bias and the test to be applied when such an allegation is made.

It is not necessary for me to range over the many authorities which were cited to me in the course of argument since a number of the more recent decisions set out in clear and unequivocal terms what constitutes objective bias and the test to be applied in deciding whether such an allegation is made out.

In O’Callaghan v. Mahon [2008] 2 IR 514, Fennelly J. synopsised the principles involved at p. 672. He said as follows:-

“(a) objective bias is established, if a reasonable and fair minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial;
(b) the apprehensions of the actual affected party are not relevant;

(c) objective bias may not be inferred from legal or other errors made within the decision making process; it is necessary to show the existence of something external to that process;

(d) objective bias may be established by showing that the decision maker has made statements which, if applied to the case at issue, would effectively decide it or which show prejudice, hostility or dislike towards one party or his witnesses.”

This is the test which Ryanair must meet if it is to be successful on this application.
The judgment of Fennelly J. is peppered with references to authorities from Ireland and the common law world. The conclusions which he reached are not peculiar to this jurisdiction but apply in many common law countries.

An equally comprehensive review of the authorities was conducted by the Court of Appeal in England in the case of Locabail UK Ltd v. Bayfield Properties Ltd [2002] W.L.R. 870. The test formulated by that court does not differ from that stipulated by Fennelly J. in his judgment in O’Callaghan’s case with which the majority of the Supreme Court agreed and which is binding on this Court.

I find observations in the judgment of Fennelly J. in O’Callaghan and the Court of Appeal in Locabail of assistance to me in the task which I have to undertake of objectively examining the application which is made by Ryanair.

In Locabail the Court of Appeal said as follows:-

“If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. We find force in observations of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union [1994] 4 S.A. 147, 177, even though these observations were directed to the reasonable suspicion test:

‘it follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predisposition. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’

22. We also find great persuasive force in three extracts from Australian authorities. Mason J., sitting in the High Court of Australia said in In Re JRL, ex-parte CJL [1986] 161 C.L.R. 342, 352:

‘Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’

23. In In Re Ebnor [1999] 161 A.L.R. 557, 568 para. 37, the Federal Court asked:

‘Why is it to be assumed that the confidence of fair-minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by setting aside a judgment on the ground that the judge is disqualified for having such an interest?’

24. In the Clenae case [1999] V.S.C.A. 35, Callaway J.A. observed, at para. 89E:

‘As a general rule, it is the duty of a judicial officer to hear and determine the case as allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.’”
Having set the general scene by reference to those quotations, I will now turn to consider the evidence which Ryanair has adduced in support of this application. I will then analyse it by reference to the authorities already cited and to a number of others which assist in reaching a determination on this matter.
The Evidence
Two affidavits were sworn in support of this application. The first is that of Mr. O’Leary and the second that of Mr. Michael Cawley who is the Chief Operating Officer and Deputy Chief Executive of Ryanair.

In Mr. O’Leary’s affidavit, he sets out the background to the present action. He says that Ryanair is claiming in excess of €7m from Terravision for, inter alia, breach of contract. Terravision operates a coach business. Ryanair claims that it entered into a marketing contract with Terravision whereby Ryanair agreed to market Terravision’s coach services from certain airports, on Ryanair’s flights and on its website. He avers that from an affidavit sworn by Mr. Petroni on behalf of Terravision, he believes that two defences will be raised at the trial. These are a claim that Ryanair has sued the wrong party and secondly, a dispute as to Ryanair’s interpretation of the contract. He goes on to say that there are factual as well as legal issues between the parties and that Ryanair employees will have to give evidence at the trial.

Mr. O’Leary will not be a witness at the trial. However, he says that Mr. Cawley and other members of Ryanair’s commercial department will be called. They will have to give evidence, he says, on both issues at the trial. He goes on to say that the adjudication of these matters will determine the case and that it will have very serious financial repercussions for the parties.

He then says as follows:-

“In this context, Ryanair has an apprehension of bias on the part of Mr. Justice Kelly if he were to determine these proceedings and indeed any disputes that involve Ryanair.”
Two issues arise from this. First, that sentence could be read as amounting to an allegation of actual bias but I will not so read it in the light of what was said in court by counsel, what is contained in the written submissions and the other documents all of which assert objective bias and nothing else.
Second, the affidavit continues in like vein throughout and expresses Ryanair’s apprehensions concerning my continued involvement with this litigation. In that regard it entirely misunderstands the legal position. As is clear from the passage which I have quoted from the judgment of Fennelly J. in O’Callaghan, “the apprehensions of the actual affected party are not relevant”. It is not what Ryanair apprehends that is relevant but what a reasonable fair minded objective observer would think.

Mr. O’Leary then quotes from my judgment in the judicial review proceedings. The part which he quotes is as follows:-

“In view of the conclusion which I have reached, it is not necessary for me to reach a decision on whether the conduct of Ryanair is of a type that would warrant a refusal of leave as a matter of discretion.
It has to be recorded, however, that the factual misstatements in affidavits put before the Court on its behalf misled the Court in a material way. Its chief executive in his letter of 25th February, 2010, to the Minister seriously misrepresented the position of the court. A later letter from Mr. Komorek of 12th March, 2010 was to like effect. These are grave matters and fall far below the standards that the Court is entitled to expect.

Earlier in this judgment, I set out the exchanges between Ryanair and the Minister and identified various misrepresentations of the Minister’s position which occurred. Whilst that is not perhaps of direct relevance, I was invited to regard it as part of the alleged ‘ingrained culture of disrespect for process’, including the court process, which appears to prevail in Ryanair.

Having had to consider Ryanair’s untruths to the Court, its untruths about the Court and its untruths about the Minister, one has to conclude that the truth and Ryanair are uncomfortable bedfellows.”

Mr. O’Leary then says that he has been advised that I struck out Ryanair’s application for judicial review and awarded costs against it without affording Ryanair an opportunity to make any submissions regarding costs. That is indeed correct. There is nothing unusual in that where a court wishes to record its disapproval of misconduct of the type in question by awarding costs. It should be borne in mind that the misconduct in the case was both gross and admitted and indeed apologised for once it was found out. But it had, inter alia, misled the court and the other parties to the litigation. Thus costs had to follow and there was no point in time being wasted on spurious submissions.
The affidavit continues:-

“It is clear from the portion of his judgment set out above that Mr. Justice Kelly has expressed a conclusion and/or belief that Ryanair does not tell the truth, or at the very least is uncomfortable with the truth. It is not confined to particular persons within Ryanair. It is not confined to the particular issues that arose in the case the subject matter of the judgment in question. It is an unqualified statement that on the basis of what Mr. Justice Kelly heard in those proceedings, he believes that Ryanair is not disposed to telling the truth.
Having made such a statement, Ryanair has an apprehension of bias and is naturally apprehensive that any version of events advanced by anyone within its organisation, whether by way of a simple interlocutory application or when seeking substantive relief, will be influenced by Mr. Justice Kelly’s conclusion and/or belief that Ryanair and the truth are ‘uncomfortable bedfellows’.

For this reason, Ryanair is apprehensive that the defendant’s evidence, where it conflicts with the evidence of Ryanair, will be preferred. Obviously that it something that may occur in any case. However, Ryanair has, given what has been indicated to date, an apprehension of bias. In circumstances where the success of these proceedings is dependent upon the parties advancing their different accounts, there is an apprehension on the part of Ryanair that its version of the facts will not be accepted or favoured by Mr. Justice Kelly.”

This passage exemplifies again the mistaken understanding of the legal position to which I have already alluded i.e. it is not Ryanair’s apprehensions that matter or are relevant. The test is objective. Whilst Ryanair may complain, it is the hypothetical objective observer that matters (per Fennelly J. in O’Callaghan at p. 666)
The affidavit then departs from the judgment in the judicial review proceedings and goes back to what occurred in court in March 2010 when Mr. O’Leary gave oral evidence to explain the misleading affidavits sworn by Ryanair. He cites a passage from the transcript and seeks to rely upon that for a conclusion which he then states at para. 10 of his affidavit. The particular passage arose in circumstances where counsel had asked Mr. O’Leary if he had considered issuing a clarifying press release apologising to the Minister for Transport once Mr. O’Leary received the Minister’s letter of 3rd March with a view to making it clear to the public that the Minister had in fact set up an appeal panel. Mr. O’Leary replied in the negative. I asked him why he had not done so. This was the response:-

“A. Because the press release, your Honour, simply calls on the Minister to appoint the Appeals Panel.
Q. 122. Mr. Justice Kelly: Which he had already done?

A. With respect, we were not aware that he had already done when we issued that.

Q. 123 Mr. Justice Kelly: I know, you’ve told me that. When you did become aware, you didn’t think it right to put the matter right and say the Minister has now done it?

A. I’m not sure, why we would issue – if we issue a press release calling on the Minister to do something, why would we issue a press release subsequently saying thank you to the Minister for doing it?

Q. Mr. Justice Kelly: You might have regarded it as being fair to people, having represented as you did here, in such offensive terms, that when you became aware of the fact that when you actually issued this press release two days beforehand, the Minister had actually set up the panel. You might have thought it right to say well in fact the Minister had done so but you didn’t?

A. I disagree with your interpretation.

Q. You are entitled to disagree with my interpretation if you wish.

A. I think what is offensive here is that I have customers who will be paying 40% higher airport charges.

Q. Mr. Justice Kelly: You needn’t make a political speech, Mr. O’Leary. You are here now to deal with a very serious matter, and a serious matter for you personally, I want to warn you.”

Having cited a portion of the passage which I have set out, Mr. O’Leary swears that:-
“Ryanair is concerned that sworn evidence given by it under oath in these proceedings will be dismissed in similar terms as a ‘political speech’ rather than a genuine explanation of Ryanair’s position in these proceedings.”
Quite apart from the offensive nature of this averment, it once again demonstrates Mr. O’Leary’s failure to understand the legal position.
The next paragraph in his affidavit cites from transcripts of different hearings in the judicial review proceedings dated 24th March, 26th March, 15th April, 4th June and 10th June, respectively. However, having exhibited these transcripts, nothing specific is identified in them in support of this application.

The affidavit then ranges over other proceedings in which Ryanair was involved and which were entered into the Commercial List.

The first involved Cork Airport Authority and a number of other entities who sued Ryanair. The case was entered into the Commercial List despite the opposition of Ryanair. Mr. O’Leary combs through a twenty-five page transcript of that hearing and takes issue with some factual matters which were dealt with in the course of my ruling.

The second set of proceedings involved a claim by Dublin Airport Authority against Ryanair. There is no transcript of this hearing, but reliance is placed on a solicitor’s attendance of a hearing which took place in October 2008 in which it is alleged that I made criticism of Ryanair’s utilisation of the court as part of a publicity campaign being conducted by it on the topic of airport fees. I have little recollection of this matter, but even a perusal of the solicitor’s attendance makes it clear that part of the submission that was made to me on the part of the applicants on that occasion was that Ryanair was indeed engaging in a deliberate campaign in seeking to avoid entry into the Commercial List by a number of devices.

Issue was taken with the costs order which I made against Ryanair in that case when it unsuccessfully objected to a transfer to the Commercial List. On the preceding Friday, its solicitors had written in unequivocal terms that it would consent to such transfer, but on Monday, a different stance was taken.

It is of no little significance that despite the fact that these complaints are made now, no appeal was taken from any of the orders in question.

Finally, he refers to an application which was made seeking that I should recuse myself from hearing the case brought by Cork Airport Authority against Ryanair. Counsel sought to have me deal with that in a completely informal manner without any affidavit evidence being placed before the court. I declined to deal with it on that basis. I required a motion and grounding affidavit to be brought in the normal fashion. Having considered the contents of the affidavit, I decided to recuse myself. I did not do so by reference to the complaints made by Ryanair which arose principally from my observation in the judgment in the judicial review proceedings. Rather, I did so because to hear the matter in full would have delayed those proceedings unnecessarily, and so the party who had successfully sought the transfer of the case to the Commercial List (not Ryanair) would be deprived of its benefits by the delay that would have been involved in hearing the application in full.

Again, the transcript has been combed by Mr. O’Leary and extracts taken from it, but it is all done in the context of Ryanair’s alleged apprehensions.

It is right that I should point out that both in the course of the written submissions and in the oral hearing, little, if any weight, was attached to the material in Mr. O’Leary’s affidavit concerning anything other than my observation in the judgment in the judicial review proceedings. Indeed, counsel appeared to distance himself from any reliance upon any such matters where, in the course of his answer, which I have already reproduced in full, he said that he, “was at pains, both in the submission and the opening, to indicate to the court that the view furnished to Ryanair was the fact that a judge had in the past held one way or another relative to that particular entity, is not a grounds of itself to base any application for a recusal”. In this he is undoubtedly correct having regard to the case law on the topic.

Mr. Cawley’s affidavit is much shorter than Mr. O’Leary’s. It largely repeats what he had to say concerning the issues in the present case. It reproduces the passage to which offence is taken from my judgment of 4th June, 2010. He then goes on to allege that my conclusion was not confined to particular persons within Ryanair, nor was it confined to the particular issues that arose in the case the subject matter of the judgment. He contends that the comment is an unqualified statement and, that on the basis of what I had heard in those proceedings, I believe that Ryanair is not disposed to telling the truth. Having made such a statement, he says, Ryanair is apprehensive that any version of events, as advanced by anyone within its organisation, would be influenced by the conclusion that Ryanair and the truth are uncomfortable bedfellows.
Discussion
In examining the evidence put before the court, the yardstick which I must use is that of a reasonable and fair-minded objective observer. That observer is not to be unduly sensitive. He is to be in possession of all the relevant facts. He is to exclude the apprehensions of the actual party. If such an objective observer, behaving in a reasonable and fair-minded fashion, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial, then a recusal should occur.

Before considering in detail the application of those norms to the evidence adduced here, it is, I think, useful to quote one further passage from the Court of Appeal’s decision in Locabail. This is a passage which was cited with approval by Clarke J. in A.P. v. H.H. Judge McDonagh [2009] IEHC 316:

“Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family;…
. . .

by contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were at issue to be decided by the judge, he had, in a previous case, rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if, on any question at issue in the proceedings before him, the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.”

As is clear from the passage which I have quoted from the judgment of Fennelly J. in O’Callaghan’s case, a reasonable and fair-minded objective observer would be in possession of all the relevant facts. Thus, he would have acquainted himself with the entire of the judgment of 4th June, 2010. He would realise from the terms of that judgment that the untruthfulness dealt with in it was admitted, albeit only after it was found out. He would realise that it was of a most serious variety. He would realise that part of it involved an allegation being made to a Government Minister that the court had been critical of him, when, in fact, no such thing had occurred. He would realise that misleading affidavits were placed before the court on two occasions. He would realise that the comment in respect of which complaint is made was made in that context. He would know that a judge is entitled to comment adversely on the misconduct of a party to litigation, particularly when that misconduct is intimately connected to the administration of justice.
The objective observer would also know that judges, when they take up office, make the solemn declaration prescribed under Article 34.5 of the Constitution that they will execute the office of judge without fear or favour, affection or ill will, and will uphold the Constitution and the laws. The observer would know that this is taken very seriously by judges. He would also know that judges can disabuse their minds of any irrelevant personal beliefs or predispositions.

He would also bear in mind that whilst justice must be done and be seen to be done, a judge should not too readily accede to suggestions of appearance of bias and thus not discharge the duty to try cases.

In the light of all of this, would the objective observer conclude that the comment made is one which could give rise to a reasonable apprehension of bias?

The only way that he might so conclude would be by accepting the construction which is sought to be placed on the comment and interpreting it as counsel sought to do as, namely, a criticism of all 7,999 Ryanair employees mentioned by him. Could any reasonable, fair-minded, objective observer, who is not unduly sensitive but who is in possession of all of the relevant facts, so conclude? I do not believe so. He would regard such a construction as far fetched.

To give the comment the construction which is sought to be placed upon it by Ryanair is to ignore the factual matrix against which the comment was made, the issues in question and to artificially extend it in a way that is wholly unreasonable. The comment was not intended in the way that Ryanair now asserts nor could any reasonable person so interpret it.

The comment would not be regarded by an objective observer as indicating any reasonable likelihood of bias against Ryanair or its employees generally who might be witnesses in this action.

I do not accept that a case of objective bias has been made out.

I attach as little weight to the other matters relied upon by Mr. O’Leary in his affidavit as counsel appearing on behalf of Ryanair gave to it in the course of the submissions both written and oral. Neither those matters alone nor combined with the principal area of complaint, in my opinion, make out a case for objective bias. Some of the complaints are absurd, for example the allegation that because I enjoined Mr. O’Leary from making a political speech in the witness box that there is a reasonable apprehension that sworn evidence of fact would be similarly regarded as political posturing. The case on objective bias fails.
Other Considerations
Two further elements of argument fall to be dealt with. Both arise from observations which are contained in Locabail and a subsequent decision of the Court of Appeal in Drury v. British Broadcasting Corporation [2007] EWCA 605.

The first proposition is one with which I have no difficulty whatsoever. It is that, as was stated in Locabail, that if there is “real ground for doubt, that doubt should be resolved in favour of recusal”. If the objective observer would have a real ground for doubt, then the recusal should be granted, even in circumstances where the case for recusal does not meet the necessary standard of proof.

In the present case, it might be argued that the objective observer could conceivably have a doubt if it were the case that Mr. O’Leary would be giving evidence in this case. In the light of the quotation from Smyth L.J., which follows in the next paragraph, I do not believe this would be a good argument. But any possible doubt disappears since Mr. O’Leary will not be a witness.

The second aspect of the matter arises, in particular, from the observations in Drury. There, Smyth L.J., having referred to Locabail, said:

“From the guidance given in that case, it is clear that the mere fact that a judge has been critical of a party on a previous occasion does not found a later objection to the judge sitting on another matter involving the same party. However, all such applications have to be considered within their factual context and it is possible that trenchant criticism of a party by a particular judge might give rise to a perception of a risk bias in another case.
. . .

It is my view that no impartial observer with knowledge of all the relevant facts, would think that any adverse view that Wilson L.J. might have formed of Mr. Drury in the past could cause him to be biased in respect of this appeal. I think it would be entirely appropriate for us to reject the application.

However, in Locabail, the court made it plain that, if there were any room for doubt as to which was the right course to adopt, the doubt should be resolved in favour of recusal. Also, if another judge can be found so that the case can proceed immediately, without increased cost or inconvenience to the parties, it seems to me that the court can properly and should arrange that substitution, so as to avoid any question of dissatisfaction or future complaint.”

Thus, in Drury, the Court of Appeal, although it rejected the application to recuse on the merits and had no doubt in that regard nonetheless substituted a judge for the judge originally assigned.
In the present case, I have to bear in mind that this piece of litigation was entered into the Commercial List, which has as its objective, the fair and expeditious resolution of commercial disputes. The case has been subjected to delay as a result of Ryanair’s application. As it was Ryanair which successfully applied to have the case transferred to this List, it can hardly have any legitimate complaint concerning any delay which its own unsuccessful motion has brought about. However, I have to have regard to the rights of the defendant as well.

The defendant has not been responsible for any such delay. It is anxious to have its case heard including the motion to strike out Ryanair’s statement of claim. As I have already observed, the quantum of the claim increased from €1.8m to €8.4m (less Stg.£986,000) within a period of four months. Such a large claim against any company, whether well founded or not, is something that can create problems for it. It may have to be provided for in its accounts and may even lead to a qualification of such accounts. It is, in principle, undesirable that a claim of that size should be allowed to remain undecided for an unnecessary length of time particularly in the Commercial List.

If I continue to deal with this litigation, I have little doubt but that Ryanair will appeal this decision to the Supreme Court thus delaying the hearing of this action for a period in excess of three further years. Even if such an appeal were to be entered in that court’s priority list, a delay of least a year will be encountered. The interests of justice and in particular the rights of the defendant will not be well served by such delays.

In these circumstances, I am of the opinion that I ought to follow the course adopted by the Court of Appeal in Drury’s case. Such a course can be adopted without increased cost or inconvenience. The interests of justice, the rights of the defendant and the attainment of the objectives of the Commercial Court will not be well served by any further delays.

In these circumstances, I propose to have a colleague deal with this litigation. I do so, solely to ensure that no further delays are encountered, thus vindicating the entitlement of the defendant to have its motion and the action against it adjudicated upon speedily and to ensure that the objectives of the Commercial Court can be achieved. It is for these reasons and these reasons alone that I propose taking the course which I have outlined.

Bank of Ireland v O’Donnell

[2015] IECA 73

JUDGMENT of the Court delivered on the 15th day of April 2015
1. This appeal demonstrates, once again, the very difficult situation in which a family may find itself where a decision was made to give security over their home to a bank in relation to significant borrowings. Such situations are understandably a cause of great emotional upset and distress for the families concerned.

2. The appellants, Mr. and Mrs. O’Donnell, appeared in person. Mr. O’Donnell, a former experienced commercial solicitor, made oral submissions in addition to the written submissions filed on behalf of the appellants. Mrs. O’Donnell appeared and informed the Court that she wished to pursue the appeal and rely upon the submissions made by her husband.

3. The respondents, to whom the Court will refer individually as “the Bank” and “the Receiver” respectively, were jointly represented by solicitor and counsel.

4. The appeal is against an order made on 12th March 2015, by the High Court (McGovern J.) granting an interlocutory injunction restraining the appellants, their servants and/or agents or any other person acting on their behalf, or having notice of the making of the order from trespassing, interfering with, entering upon or otherwise attending at the property known as ‘Gorse Hill’; an order directing the appellants and others to vacate Gorse Hill and other interlocutory orders restraining the same persons from impeding or obstructing the Receiver, and directing the appellants and others deliver up to the Receiver any keys, alarm codes and/or other security and access devices. The appellants also appeal against prior rulings of the High Court judge in relation to the same motion.

5. The members of the Court are in agreement on all issues in the appeal and have determined to deliver a single judgment of the Court.
Background and Prior Proceedings
6. The proceedings in which this appeal arises commenced only on 3rd March, 2015. However, there are a significant number of prior sets of related proceedings between the Bank, its subsidiary Bank of Ireland Private Banking Limited (“BOIPB”) and the Receiver and members of the O’Donnell family and companies controlled by them. The issues in this appeal must be considered in the context of those prior proceedings. On an appeal such as this against the granting of an interlocutory injunction, the Court is not concerned to decide any disputed fact. It is, however, relevant to identify those facts which may be considered to represent the status quo at the time of the Bank’s application for the interlocutory injunction. Insofar as the Court refers to facts in this judgment, it is only on that basis. For the most part, the relevant facts to be taken into account in identifying the factual status quo are derived from orders made and judgments delivered in the prior proceedings.

7. Similarly the Court is not concerned to decide any legal issue in dispute in the proceedings. In the course of the appeal, the appellants submitted that certain prior determinations made by the High Court and the Supreme Court in the related proceedings, to which they were not parties, are not binding on them. Insofar as the Court refers to those determinations in the course of this judgment, the Court is not making any decision on that objection. That will be a matter for the full hearing of the proceedings. The facts or legal issues as determined in those proceedings, where relevant to issues in this appeal do, however, represent the current status quo.

8. The principal relevant judgment is the single judgment delivered by Laffoy J. in the Supreme Court, 19th December, 2014 (with which all other members of the Court agreed) in proceedings between Alexandra O’Donnell, Blaise O’Donnell, Blake O’Donnell and Bruce O’Donnell (“the O’Donnell Children”) and the Bank, BOIPB and the Receiver [2012 No. 7554P] (“Gorse Hill proceedings”). As appears therefrom, commencing about 1997, the appellants put in place a complex legal structure for the purchase and development of two separate parcels of land which together became known as Gorse Hill and its use as a home for their family. They used, for that purpose, an Isle of Man company, Vico Ltd.

9. In about 2000, the appellants demolished the original house on Gorse Hill and redeveloped it as a residential property. The appellants and their four children lived there until December 2011, when the appellants moved to England and the children remained living in the house. The property at Gorse Hill was acquired in two tranches; one a purchase of unregistered land and one of registered land.

10. It was held by Laffoy J., that by 2006, Vico Ltd. was the legal and beneficial owner of all the property comprised in Gorse Hill which was its only asset.

11. It further appears from the judgment of Laffoy J. that in June 2006, Vico Ltd. gave a guarantee and indemnity to the Bank in relation to liabilities of the appellants to the Bank and a separate guarantee and indemnity in relation to liabilities of Hibernia, a company incorporated by the appellants. The maximum then liability of Vico Ltd. to the Bank was €17 million. In June 2006, Vico Ltd. executed a Deed of Mortgage (“the Mortgage”) in favour of the Bank over the unregistered portion of Gorse Hill in respect of its liabilities to the Bank. Also, in June 2006, it executed a Deed of Charge (“the Charge”) in favour of the Bank, charging the registered lands in Gorse Hill with its liabilities to the Bank. There were subsequent guarantees given by Vico Ltd. to the Bank in respect of liabilities of the appellants and companies incorporated by them. It is not necessary to refer to these in detail.

12. The appellants had also, in 1997, as settlors, established a discretionary trust, the proper law of which was to be the Isle of Man and the beneficiaries included their children. There was a corporate trustee, the identity of which changed from time to time. The shares in Vico Ltd. were accepted by the trustee as an addition to the trust fund. The appellants advanced monies to Vico Ltd. in relation to the cost of acquisition and redevelopment of Gorse Hill. Laffoy J., at para. 108 of her judgment, summarised the relationship of the appellants with Vico Ltd. in relation to Gorse Hill as follows:-

“Moreover, the documentary evidence also establishes aspects of the relationship of Mr. O’Donnell and Mrs. O’Donnell with Vico Limited in relation to Gorse Hill, which are material to the determination of where the beneficial ownership of Gorse Hill lies, namely:
(a) that a debtor/creditor relationship exists between Vico Limited, as debtor, and Mr. O’Donnell and Mrs. O’Donnell, as creditors, in relation to the costs of acquisition and re-development of Gorse Hill; and

(b) that there was an arrangement between Mr. O’Donnell and Mrs. O’Donnell and Vico Limited under which Mr. O’Donnell and Mrs. O’Donnell and their children would be entitled to reside in Gorse Hill.

In simple terms, what the evidence establishes is that Mr. O’Donnell and Mrs. O’Donnell jointly decided that their family home, not using that expression in any technical sense, would be acquired by them through the medium of an Isle of Man company, Vico Limited, which would be indebted to them for the acquisition and re-development costs, but which would allow them reside there with their children. Contemporaneously, they jointly decided to settle the issued share capital of Vico Limited on the terms of the Discretionary Trust.”
13. The above determination by the Supreme Court of an arrangement between Vico Ltd. and the appellants whereby the appellants were allowed by Vico Ltd. to reside in Gorse Hill as their home forms part of the factual status quo relevant to the issues on appeal.

14. Proceedings between the Bank and the appellants and related companies commenced in 2010. Unfortunately, by that date, the appellants and certain companies had defaulted in relation to liabilities to the Bank and it issued summary summons proceedings [2010 No. 6100 S] against them. Contemporaneously, separate summary proceedings were issued against three related companies. Those four sets of proceedings were entered into the Commercial List, and on the second day of the hearing of an application for summary judgment, on 4th March 2011, an agreement in writing (“the Settlement Agreement”) was entered into between the Bank and the appellants and the companies. On consent of the parties, the High Court (Kelly J.) made orders in the summary proceedings on 4th March 2011, that each of the proceedings be adjourned generally with liberty to re-enter for the purpose of enforcing the agreed terms. The appellants and the companies were represented by solicitor and counsel at that time.

15. The Settlement Agreement (exhibited in the High Court in these proceedings) set out in schedule one thereto the then agreed indebtedness of the appellants (jointly and severally) to the Bank in the sum of €69,520,063.69. It also provided staged payments to be made on 31st July 2011, in the sum of €8,500,000 and 31(sic) November 2011, in the sum of €20 million and 31st May, 2012, in the sum of €14 million. It further provided, at para. 3.2, that in default of receipt by the Bank of any of the said payments that the Bank had liberty to re-enter the proceedings, and that upon re-entry the Debtors (i.e the appellants and the defendant companies) shall consent to judgment against them in the respective amounts specified in schedule one and additional interest accrued thereafter.

16. The payment due on 31st July 2011 was not made (nor the payment at the end of November 2011), and the Bank, in December 2011, re-entered the summary proceedings [2010 No. 6100 S] and the High Court (Kelly J.) granted judgment in favour of the Bank against the appellants on 12th December 2011, in the sum of €71,575,991.29 pursuant to the Settlement Agreement together with costs.

17. The Settlement Agreement also contained relevant terms in relation to Gorse Hill to which reference is made below.

18. Mr. and Mrs. O’Donnell appear to have moved to live in England in late 2011. They subsequently sought to be adjudicated as bankrupt in that jurisdiction. That application was opposed by the Bank and this Court was informed during the appeal that ultimately it was determined by the English High Court that, though resident in England, the appellants’ Centre of Main Interest was not in England and the application for adjudication refused.

19. The appellants were adjudicated bankrupt in Ireland on 2nd September 2013 [2479 and 2480] on the petition of the Bank. They appealed that adjudication to the Supreme Court and the appeals were dismissed on 25th February 2015. In November 2014, a motion was issued by Mr. and Mrs. O’Donnell seeking to annul the adjudications pursuant to s. 85C of the Bankruptcy Act 1988. That application remains before the High Court.

20. In the meantime, the Bank, on 18th May 2012, called in the indebtedness of Vico Ltd pursuant to its guarantees and indemnities. The debt was not discharged and the Bank, on 7th June 2012, pursuant to the Mortgage and Charge, appointed the Receiver, Mr. Kavanagh as receiver and manager of the Gorse Hill property.

21. By letter of 8th June 2012, Arthur Cox, as solicitor for the Receiver, wrote to the Secretary of Vico Ltd. informing it of the appointment of the Receiver and stating:-

“Take notice that the Receiver and Manager intends to take possession of the properties [Gorse Hill] on Wednesday, 1st August, 2012 and accordingly will be writing to all current occupants of the property advising them of the need to seek alternative accommodation.”
There is no evidence in these proceedings of any response to this from or on behalf of Vico Ltd.
22. It is common case that the occupants of Gorse Hill, in July 2012, were the O’Donnell children. They were represented by solicitors and there is reference to correspondence from such solicitors in July 2012. On 30th July 2012, the O’Donnell children commenced plenary proceedings [2012 No. 7554 P], (“the Gorse Hill proceedings”), against the Bank, BOIPB and Mr. Kavanagh. They primarily contended that they were beneficially entitled to Gorse Hill, challenged the validity of the mortgage and charge given by Vico Ltd. and denied the entitlement of the Bank and Receiver to possession. They sought a series of reliefs to that effect. The plaintiffs, (the O’Donnell children), were legally represented by solicitor and counsel throughout those proceedings in the High Court and the Supreme Court until after the delivery of judgment by the Supreme Court.

23. In the High Court, following a full hearing of the plenary proceedings, McGovern J., on 31st July, delivered a written judgment in which he determined that the plaintiffs were not entitled to the reliefs sought or any relief. On 12th September 2013, pursuant to the judgment delivered, the High Court (McGovern J) made an order that the plaintiffs (the O’Donnell children) vacate the premises at Gorse Hill by Monday 21st October 2013.

24. The O’Donnell children appealed that order and judgment to the Supreme Court. The Bank and the Receiver agreed to a stay on the High Court order pending the determination of the appeal. On 19th December 2014, Laffoy J. delivered the detailed and extensive judgment, already referred to, with which the other members of the Court agreed. The Supreme Court dismissed the appeal and expressly upheld certain determinations of the High Court.

25. The O’Donnell children discharged their solicitors in January 2015. The matter came before the Supreme Court on 2nd February 2015, on the question of costs and the consequential order to be made. The Supreme Court, having heard Mr. Blake O’Donnell(who is admitted as a Solicitor in England and Wales) who then appeared personally and Counsel for the Bank, BOIPB and the Receiver, made an order for costs, and extended to 12.00 noon on Monday 2nd March 2015 the time and date in the order of the High Court of 12th September 2013, by which the O’Donnell children were required to vacate Gorse Hill.

26. On 19th February 2015, Arthur Cox, on behalf of the Receiver, wrote to each of the O’Donnell children enclosing a copy of the Supreme Court Order and telling them that the Receiver would attend at Gorse hill at 12 noon on 2nd March to take vacant possession of the property and asking that they would be there to hand over the keys.

27. On 25th February 2015, the Supreme Court, in a single judgment of Laffoy J. (with which the other members of the Court agreed), dismissed the appellants’ appeals against the High Court bankruptcy adjudications of each appellant.

28. On 25th February 2015, also, Vico Ltd. and the O’Donnell children issued further plenary proceedings [2015 No. 1553 P] against the Bank, BOIBP, the Receiver and a number of individuals and companies resident in Switzerland and the Isle of Man connected with Vico Ltd. and the Discretionary Trust created in favour of the O’Donnell children by the appellants. The multiple reliefs sought include declarations that the guarantees, indemnities, mortgage and charge granted by Vico Ltd. in respect of borrowings of the appellants are void and orders “overturning” the orders made by High Court on 12th September 2013 and the Supreme Court on 2nd February 2015, requiring the O’Donnell children to vacate Gorse Hill by 2nd March 2015.

29. A motion was also issued on 25th February 2015, in those proceedings by the plaintiffs, returnable for 2pm on 2nd March, seeking interlocutory injunctions effectively restraining the Bank, BOIBP and the Receiver from taking possession of Gorse Hill and also seeking a stay on the order of High Court of 12th September 2013, as varied by the Supreme Court order of 2nd February 2015. It was grounded on affidavits of Mr. Blake O’Donnell and Ms. Blaise O’Donnell.

30. On 27th February 2015, Mr. Brian O’Donnell, the first named appellant, wrote to Arthur Cox claiming a right of residence in Gorse Hill and inter alia stating:-

“As you are aware from paragraph 11 of the judgment of Mr. Justice McGovern dated the 31st July, 2013, my wife and I have a right of residence in Gorse Hill, Vico Road, Killiney, Co. Dublin, which must be terminated by writing with at least two calendar years notice.”
Paragraph 11 of the judgment of McGovern J. refers to a letter of 20th October 2000, from the appellants to the then trustee of the discretionary trust. It is also referred to by Laffoy J. at para. 25, of her judgment of 19th December 2014 where the relevant statement below from the appellants’ letter is repeated:-
“We confirm that we shall use the residence Gorse Hill Vico Road as a residence of ourselves & the beneficiaries for so long as the Trustees on behalf of the beneficiaries shall permit. It is acknowledged by the Trustees & the beneficiaries that any notice given to us to vacate the residence shall be in writing & shall in the absence of our consent be at least 2 calendar years prior to the vacation date to allow sufficient time for alternative arrangements to be made.”
31. Reference was also made by Mr O’Donnell in his letter of 27th February to the new proceedings issued by Vico Ltd. and the O’Donnell children and the motion returnable for 2nd March at 2.00 pm, and indicating intention to call the police should the Receiver attend at the residence on 2nd March. In its response, Arthur Cox rejected all claims made to a right of residence and placed reliance on the judgments of the High court and Supreme Court in the Gorse Hill proceedings as having definitively determined the legal position in relation to the security over Gorse Hill.
32. On 2nd March, shortly before 12.00 noon, an email was sent to Arthur Cox with a letter signed by each of the four O’Donnell children stating that they had vacated Gorse Hill. The letter was also stated to be “without prejudice to current and future legal proceedings against the Bank and BOIPB and the injunction listed for hearing at 2.00 pm that day”. The injunction application in proceedings [2015 No. 1553 P] Vico Ltd. & Ors came on before the High Court (McGovern J.) at 2pm on that day. Mr. Blake O’Donnell appeared and in addition to making submissions on the injunction application confirmed to the High Court that his parents were in occupation of Gorse Hill. Further, that notwithstanding he and his siblings had vacated Gorse Hill, he was unable to hand over keys to the Receiver. McGovern J. reserved his decision on the injunction application in the Vico Ltd. and Ors proceedings to the following day.

33. The final factual matter prior to 3rd March, which appears to have heightened tensions between the Bank, Receiver and O’Donnell family, was the participation from 2nd March of members of the so-called ‘New Land League’ or ‘Land League’ at Gorse Hill, and the issuing by them of statements and consequent media attention.

34. On 3rd March, McGovern J. delivered his decision on the interlocutory application in proceedings [2015 No. 155P]. In summary, he refused the application upon the basis that the plaintiffs had not established a fair issue to be tried. That ex tempore judgment was delivered in the presence of Mr. Blake O’Donnell.

35. At the end of the ruling, Counsel for the Bank and Receiver indicated that by reason of the continuing occupation by the appellants of Gorse Hill, proceedings had been prepared and were ready to be issued immediately and he was seeking an early return date for a motion seeking interlocutory injunctions. There was then an exchange between the judge and Mr. Blake O’Donnell in relation to making contact with his father, to which further reference is made below, and a short adjournment granted.

36. Counsel for the Bank and Receiver, at the resumed hearing, made an application for liberty to issue and serve short notice a motion seeking entry of their new proceedings to the Commercial List and interlocutory relief. An order was made giving liberty to issue and serve the motion returnable for Thursday 5th March at 11.00. Orders were also made in relation to the service of the proceedings and motion on the appellants, both by email to an email address used by Mr. O’Donnell, and leaving the documents at the property at Gorse Hill, and in the event that there was no response to an intercom system at the gate, to affix the documents to the entrance gate and notify the defendants by email that they had been so fixed. It was further ordered that the appellants file and serve any replying affidavit by 4.00 pm on Wednesday 4th March 2015.

37. There are two other potentially relevant procedural steps taken by the O’Donnell’s prior to March 2015. On 23rd July 2014, Mr. and Mrs. O’Donnell brought a motion to the Supreme Court seeking leave to extend time to appeal the judgment granted against them by the High Court (Kelly J.) on 12th December 2011, in the summary proceedings. That application was then the subject of the Direction given by the Chief Justice under Article 64.3.1 of the Constitution on 29th October 2015, transferring same to the Court of Appeal. The appellants applied to the Supreme Court pursuant to Article 64.3.3 cancelling the direction given insofar as it applied to their application. On 5th February 2015, the Supreme Court cancelled the direction. The appellants’ motion has not been heard by the Supreme Court.

38. In further High Court proceedings [2012 No. 7293 P] between the Bank, as plaintiff, and Blake O’Donnell, Bruce O’Donnell, Brian O’Donnell and Mary Patricia O’Donnell, as defendants, the defendants appealed on 6th August 2014, against the refusal of the High Court (McGovern J.) on 21st July 2014, to recuse himself from hearing those proceedings. It appears from the transcript of 5th March that such refusal was made in the course of an application by the Bank to re-enter what counsel referred to as “the fraud proceedings”. That appeal was similarly the subject of the Direction by the Chief Justice on 29th October 2014. Upon application made by the defendants/appellants, the Supreme Court, on 5th February, has cancelled the direction insofar as it applies to that appeal. The appeal has not yet been heard by the Supreme Court.

Hearing and Rulings 5th March
39. The respondents’ motion was grounded upon affidavits sworn by Mr. Brian O’Connor of the Bank and the Receiver and a Certificate of Niamh Mulconry, a solicitor and Partner in Arthur Cox, for the purposes of the Commercial List admission application. Mr. O’Donnell delivered and filed a replying affidavit as directed by 4.00 pm on 4th March 2015. He also, on that day, served a notice to produce for inspection purposes the original of the two Deeds of Mortgage and Charge of June 2006, and the two Deeds of Appointment of the Receiver of June 2012. He also served a notice of intention to cross- examine Mr. O’Connor and the Receiver on the affidavits filed. A further replying affidavit was sworn by Mr. O’Connor on 4th March.

40. The original documents were produced by the Bank for inspection prior to the hearing on 5th March, and were also produced to this Court.

41. During the hearing on 5th March, the following rulings were made which are the subject of appeal to this Court:

1. The refusal of the application to the judge to recuse himself.
2. The refusal of the application for an adjournment.

3. The decision to admit the proceedings to the Commercial List pursuant to O. 63A, r. 1(b) of the Rules of the Superior Courts.

42. The High Court judge reserved his decision on the plaintiffs’ application for interlocutory relief. He also reserved his decision on the defendants’ application to cross- examine Mr. O’Connor and Mr. Kavanagh on their affidavits. The High Court judge delivered two written judgments on 12th March 2015, pursuant to which the orders the subject of this appeal were made.
43. For the sake of clarity, the Court is separately considering the appeal against each of the High Court rulings and orders made. Prior to doing so, it is appropriate to consider briefly this Court’s jurisdiction on the appeal.
Jurisdiction of Court of Appeal
44. In the written submissions of the respondents, they contended for limited circumstances in which the Court of Appeal should overturn or set aside an interlocutory injunction in accordance with the judgment in Riordan v. Minister for Environment (No. 6) [2002] 4 IR 404. However, correctly, in the Court’s view, this was not pursued at the hearing.

45. The approach to be taken by the Court of Appeal on an appeal against a discretionary order made by the High Court has recently been considered in a judgment of the Court, Collins v. Minister for Justice, Equality and Law Reform and Others [2015] IECA 27. That judgment relates to an appeal from an order of the High Court dismissing proceedings by reason of inordinate or inexcusable delay and considered prior decisions of the Supreme Court indicating that the High Court decision should only be interfered with where an error of principle was disclosed. The conclusion reached was that whilst the Court of Appeal will pay great weight to the views of a trial judge, the ultimate decision is one for the appellate Court, untrammelled by any a priori rule that would restrict the scope of the appeal to interfere with the decision of the High Court.

46. The Court of Appeal, in the judgment in Collins, also referred with approval to what was stated by Geoghegan J. in the Supreme Court in Desmond v. MGM Limited [2008] IESC 56, 2009 1 IR 737 at 742, 743:

“Traditionally, the common law view was 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 the discretion. In a landmark case cited by Kearns J. in his judgment, In bonis Morelli; Vella v. Morelli [1968] I.R. 11, it was pointed out by this court that an appeal lay from every decision of the High Court to the Supreme Court unless otherwise provided for by law. Any rule by which the court was inhibited from interfering with a discretionary order was not therefore compatible with the Constitution. However, in In bonis Morelli; Vella v. Morelli as Kearns J. points out, Budd J. indicated that the court would have to give “great weight to the views of the trial judge”. I think that that is the true legal principle in the light of the Constitution now. But there is an added factor in my opinion. 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 etc. I think that in reality over the years since In bonis Morelli; Vella v. Morelli this court has exercised common sense 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 where much more substantial issues are at stake 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 re-exercise the discretion in a different direction.”
47. The rulings and orders the subject of this appeal vary from those which are concerned with the management of the proceedings and motions in the High Court to those which are such that there are substantial issues at stake for both parties. The Court considered all issues on the appeal upon the basis set out above, namely, that whilst having respect for the view of the High Court judge, this Court must, in the light of the submissions made, seriously consider whether, in all the circumstances and in the interest of justice, it should exercise the court’s discretion in a different direction and vacate, vary or otherwise interfere with the High Court ruling or order. However, in reaching its conclusions it has also had regard to the varying types of the relevant High Court ruling or order.
Failure of High Court Judge to Recuse Himself
48. The first matter addressed by Mr. O’Donnell in his replying affidavit in these proceedings in the High Court was a request that the High Court judge recuse himself. The application in the affidavit was based upon certain alleged complex business and financial arrangements of the High Court judge, principally through his wife, with both respondents.

49. Similarly, at the commencement of the hearing on 5th March, Mr. O’Donnell asked the High Court judge to recuse himself. This Court has had available to it the transcript of the hearing of 5th March. The application was pursued upon the grounds of objective bias. Mr. O’Donnell made no allegation of, or request that the High Court judge disqualify himself on the grounds of, actual or subjective bias. The application was in addition to the alleged financial connection with the respondents based upon certain remarks made by the judge to Mr Blake O’Donnell at the hearing on 3rd March.

50. Before this Court on appeal, the appellants similarly submitted that the High Court judge ought to have disqualified himself upon the basis of objective bias alone.

51. Whilst this Court was referred to a number of authorities, there was no real dispute between the parties, either in the High Court or in this Court as to the appropriate test to be applied in this jurisdiction. It is, as set out by the Supreme Court in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412, and again applied by the Supreme Court and explained further in Kenny v. Trinity College Dublin [2008] 2 IR 40.

52. In Bula Ltd. v. Tara Mines, a case in which objective bias was alleged against two judges on the basis of their previous professional engagements as barristers, Denham J. explained the test firstly at p. 441 as follows:-

“The submissions in relation to the test to be applied roved worldwide. However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person.”
53. Then, in the same judgment at p.449, Denham J. also stated:
“A judge has a duty to sit and hear a case. However, in certain circumstances it is appropriate that he or she disqualify himself or herself from a particular case. The test is not whether that judge believes he or she would be impartial. Nor is it whether the judge or judges on a motion to set aside such a judgment believes the judge was or would be impartial. Nor is it whether the parties consider the judge impartial. The test is objective. This has been analysed by the Constitutional Court of South Africa: President of the Republic of South Africa v. South African Rugby Football Union 1999 (4) S.A. 147 at para. 48:-

‘… the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial’.”
54. In Kenny v. Trinity College, where the gravamen of the claim was that one of the Supreme Court judges hearing the appeal was a brother of a partner in the firm of architects responsible for the design and execution of the development the subject matter of the proceedings and a member of the firm, it was alleged, had participated in the concealment of material from the Court. Fennelly J., having referred to the above authoritative test of Denham J. in her judgment in Bula Ltd. v. Tara Mines (No. 6), said of the hypothetical reasonable person at p. 45:
“The hypothetical reasonable person is an independent observer, who is not over sensitive, and who has knowledge of the facts.
55. The High Court judge, in the course of exchanges with Mr. O’Donnell and Counsel for the respondents at the hearing on 5th March, and in his ruling, referred to each of the above decisions of the Supreme Court. In particular, in his ruling he cited the first part of the quotation from the Constitutional Court of South Africa and indicated that that was the test he proposed applying.
56. As appears, the objective test is applied to the hypothetical reasonable person who has knowledge of all the correct facts. The relevant facts herein are in two parts. Firstly, in relation to the comment of the High Court judge to Mr. Blake O’Donnell at the hearing on 3rd March that it could be done “the easy way or the hard way”, there is no dispute about the relevant facts. The transcript of the hearing on 3rd March was made available to this Court, as is the transcript of the hearing on 5th March. This Court has considered both and noted the full explanation given by the High Court judge to Mr. O’Donnell at the hearing of 5th March of the context in which the comment was made and acceptance by Mr. O’Donnell that it was “a reasonable explanation”.

57. No objection was made, in the Court’s view correctly, to the High Court judge by reason of his judgments and rulings in any of the prior related proceedings including the judgment on the interlocutory application delivered on 3rd March 2015 in the Vico Ltd. & Ors new plenary proceedings. See inter alia judgment of Court of Appeal of England and Wales in Locabail (UK) Ltd. v. Bayfield Properties Ltd. & Ors. [2000] QB 451 at para. 25 and authorities referred to therein. Nevertheless the full background facts including the prior related proceedings and decisions made therein are also relevant.

58. This Court considers that applying the objective test, a reasonable person, who is an independent observer and not over-sensitive with knowledge of the full facts of the exchanges between the High Court judge and Mr. Blake O’Donnell on 3rd March, and the further exchanges between the High Court judge and Mr. Brian O’Donnell on 5th March, and the full background facts to these proceedings would not have a reasonable apprehension that the appellants would not have a fair hearing from an impartial judge on the issues arising on the motion brought by the respondents before the High Court on 5th March.

59. The application that the High Court judge recuse himself by reason of the alleged “complex financial and business relationship” primarily through his wife with the Bank and Receiver was made upon the basis, principally, of facts learnt by Mr. O’Donnell from newspaper reports of proceedings between the judge’s wife and other of her siblings in relation to a partnership known as the ‘Ryan Partnership’. In the course of the hearing, the judge clarified certain relevant factual misunderstandings of Mr. O’Donnell and identified the correct facts in relation to financial or commercial connections between the judge and his wife with the Bank or the Receiver as being:

(i) He and his wife previously jointly had borrowings from the Bank and had granted mortgages to the Bank on their home and other properties. Those borrowings had now been paid off and neither he nor his wife currently had any borrowings from the Bank.
(ii) His wife was a party to the litigation between her siblings relating to the Ryan Partnership. The Bank was not a party to that litigation. The Ryan Partnership had previously borrowings from the Bank. Those borrowings had been discharged. His wife, as a member of the Ryan Partnership, was not now indebted to the Bank.

(iii) In the course of the litigation between the Ryan siblings concerning the Ryan Partnership, a receiver had been appointed. He was not appointed by the Bank. He is Mr. Ken Fennell who is a partner of Mr. Tom Kavanagh. In that litigation, an application was made by his wife and other members of the Partnership on a motion in the existing proceedings seeking directions from the High Court to the receiver to complete the receivership and challenging the fees of the receiver and his solicitor which were being sought to be approved by the Court. That application had been dealt with and the fees reduced.

(iv) The High Court judge did not know Mr. and Mrs. O’Donnell, any of the witnesses who gave evidence for the Bank or for the O’Donnell children in the previous proceedings or Mr. Fennell or Mr. Kavanagh.

60. They were the facts upon which the High Court judge made his ruling, applying the cited objective test and determined that he should refuse the application to recuse himself.
61. In the High Court Mr O’Donnell had averred in his affidavit that the last time he viewed entries in the Land Registry in August 2014 the Bank held a mortgage on an identified apartment in Mount Merrion (without expressly saying that it was owned by the judge and his wife). The High Court judge in his ruling does not refer to this averment but did state “they [the appellants] seem to be under a misapprehension that my wife and I have outstanding mortgages or loans with the Bank of Ireland which is also not the case . . .”. On the appeal, Mr. O’Donnell produced to the Court an updated Land Registry search as at 20th March 2015, which records a mortgage created on 11th June 1999 by the High Court judge and his wife in favour of the Bank of Ireland over the same apartment in Mount Merrion. The search result does not record it as having been vacated or satisfied. The fact that there is no registration of a satisfaction does not establish that there remain any monies outstanding from the High Court judge and his wife to the Bank secured by the mortgage. This Court accepts the facts, as stated by the High Court judge, that he and his wife did not have, at the time of this application before him, any outstanding borrowings or loans or mortgages (in the sense of a mortgage upon which there was an indebtedness) to the Bank. However, in the interests of justice, it is appropriate that the Court considers the submissions made on appeal that the High Court judge ought to have recused himself by reason of the financial relationship between himself and his wife and the Bank as including in addition to the above facts an extant mortgage granted by them in favour of the Bank over one apartment.

62. The appellants submitted that the judgment of the High Court (Hogan J.) in Irish Life & Permanent plc. v. Malcolm Duff & Susan Duff [2013] IEHC 43, is authority for the proposition that a judge, prior to hearing a case to which a bank is a party, is bound to disclose any relationship with that bank. The Court does not consider the judgment to be authority for such a proposition nor is it a correct statement of the obligation of a judge in Ireland hearing a case concerning a bank. Ireland is a small country with a relatively small number of commercial banks. As a matter of common sense, all judges have bank accounts and other banking facilities including in many cases a loan secured by a mortgage on their home or other property. The duty of a judge to make disclosure derives from the judge’s obligation to ensure a hearing by an impartial court. Both duties must be considered in the context of the declaration made by every judge in the terms set out in Article 34.5.1 of the Constitution. In Bula Ltd. v Tara already referred to, Denham J having earlier referred to the declaration pursuant to Article 34.5.1 put it thus at p.460:

“There is a duty on the judge to ensure that the court is impartial. There is a duty on the judiciary to disclose matters that may impair an impartial trial. There is a long practised convention of the judiciary of doing so. It is routine for judges to disqualify themselves where it is appropriate. If links are established subsequently the lack of knowledge or disclosure may be one of the factors, the weight of which will depend on the circumstances, leading to a reasonable apprehension of bias.”
63. As has been observed by the Court of Appeal in England in Locabail (UK) Ltd. v. Bayfield Properties Ltd. & Ors. [2000] QB 451 at para. 25 (albeit applying the different test of ‘real danger of bias’) “It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided”. Similarly in relation to the applicable test in this jurisdiction of ‘reasonable apprehension’ every thing will depend on the facts which may include the nature of the issue to be decided. It is clear that it was the nature of the issues to be decided which gave rise to the disclosure made by Hogan J. in Irish Life & Permanent plc. v. Duff. At para. 3 of that judgment, he stated:
“Since the judgment I am about to deliver may have implications for the mortgagor/mortgagee relationships generally and specifically by reference to those who are customers of ILP, it is perhaps apposite that I should disclose that I am a mortgage account holder with ILP. I mentioned this to the parties at the commencement of the hearing and both waived any possible objection to my hearing of this appeal on that account.”
64. The issues arising on the respondents’ motion before the High Court judge on 5th March were not such that a judge assigned to hear the motion, who had a mortgage over an apartment with the Bank (with or without any loan secured thereby) and he and his wife had previously had borrowings from the Bank now repaid, is either under an obligation to disclose nor could knowledge of such facts give the hypothetical reasonable person a reasonable apprehension that the parties to the motion would not have a fair hearing from an impartial judge on the hearing of the motion. In the absence of facts which give rise to an obligation to recuse him/herself, as stated in Bula Ltd v Tara (No.6) at p.449 (set out above), a judge has a duty to sit and hear the case or motion.
65. The appellants also drew the Court’s attention to the judgment of the Court of Human Rights in Sigurdsson v. Iceland (No. 39731/98) delivered on 10th April 2003. On the facts in that case, the Court of Human Rights held that there had been a violation of Article 6, para. 1 of the European Convention on Human Rights by reason of the failure of an Icelandic judge to recuse herself from adjudicating upon a case concerning the National Bank in 1997. However, the facts in Sigurdsson are wholly different to the facts pertaining to the High Court judge and his wife and the Bank and Receiver.

66. In Sigurdsson, the facts were that the judge was a member of the Supreme Court of Iceland. In the year preceding the hearing of an appeal between the applicant and the National Bank, the judge’s husband had come under significant financial pressure in relation to the debts of a third party which he had guaranteed. At the conclusion of protracted negotiations, the National Bank relinquished 75% of the debt owed by him to it. In order to secure the settlement and enable her husband honour his obligations, the judge made available two of her properties which were used to raise the funds necessary to cover the settlement.

67. On those facts, the Court of Human Rights concluded that there was at least the appearance of a link between the steps taken by the judge in favour of her husband and the advantages he obtained from the National Bank. It further concluded that the judge’s involvement in the debt settlement, the favours received by her husband and his links to the National Bank were of such a nature and amplitude and were so close in time to the Supreme Court’s examination of the case that the applicant could entertain reasonable fears that it lacked the requisite impartiality.

68. On the facts herein there is no evidence of any advantage obtained by the judge’s wife from the Bank as a member of the Ryan partnership. Mr O’Donnell on 5th March expressly queried the judge as to whether there was “an arrangement” between the Bank and the partnership to which the judge responded “No arrangement was reached . . . The Bank was paid whatever was due to them as I understand it.”.

69. The Court has considered carefully the full submissions made by the appellants, both in writing and in oral submission, on the failure of the High Court judge to recuse himself. The Court has applied the objective test to the full correct facts, including the fact that there remains a mortgage in favour of the Bank registered against a property owned by the judge and his wife, and has concluded that the hypothetical reasonable person, an independent observer who is not over-sensitive and who has full knowledge of all such facts would not have had a reasonable apprehension that the appellants would not have had a fair hearing from an impartial judge, being McGovern J., on the hearing of the respondents’ motion returnable before him on 5th March 2015. Accordingly, the Court dismisses the appeal against the failure of the High Court judge to recuse himself.
The Refusal of the Application for an Adjournment
70. The appellants’ appeal against the refusal of their application for an adjournment of the hearing on the morning of 5th March must be considered in the context of the order made on 3rd March by the judge giving liberty to issue and serve with short notice the motion for the interlocutory injunction returnable for 5th March and the direction that the appellants deliver any replying affidavit by 4.00pm on 4th March. There was no appeal against the order for short service made on 3rd March 2015.

71. The appellants submit that the timeframe imposed by the judge on 3rd March, and the refusal of the adjournment application was in breach of their constitutional rights to fair procedures and Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms. The appellants seek to have the entire of the orders made on 5th March, including the interlocutory injunction, set aside on that basis.

72. It is not disputed that the High Court pursuant to O. 52, r. 6 and O. 107, r. 7 of the Rules of the Superior Courts has jurisdiction to abridge time, or as it is put, give special leave for short service of a motion. However, the exercise of such discretion must be in accordance with the principles of constitutional justice and fair procedures. The High Court judge was requested by the Bank and Receiver to exercise his discretion to grant a short return date for their interlocutory motion seeking to restrain, as they perceived it, a trespass by the appellants and an alleged interference with the Receiver’s entitlement to obtain vacant possession of the premises at Gorse Hill. The facts pertaining to Gorse Hill and its occupation on 3rd March 2015 were exceptional and unusual and included the history of what had occurred since the Bank appointed the Receiver in June 2012, in particular, the Gorse Hill proceedings brought by the O’Donnell children, culminating in the order of the Supreme Court of 2nd February 2015, which, in substance, required the only persons, who, by that date had claimed an entitlement to be in possession of the premises i.e. the O’Donnell children, to vacate by 12.00 noon on 2nd March 2015; the further proceedings commenced on 25th February 2015 by Vico Ltd. and the O’Donnell children; the motion heard on 2nd March and the ex tempore judgment delivered thereon on 3rd March; the fact that Mr. O’Donnell was a highly experienced lawyer and that notwithstanding the stated intention of the Receiver to go into possession on 1st August 2012 and the prior related proceedings it was not until Friday 27th February that the appellants asserted a right of residence in the premises. There was the additional situation of the presence of members of the Land League or New Land League. The judge was informed by Mr. Blake O’Donnell at the hearing on 3rd March, in relation to this that he had spoken to his father who had invited “some of his friends who are in the Land League to come to the property to protest”.

73. The issue for this Court is whether the High Court, in all those circumstances in fixing 5th March 2015 as the return date for the motion, requiring the appellants to adhere to the specified time limit for the filing of an affidavit and refusing the adjournment, acted in breach of their constitutional rights.

74. The appellants did file an affidavit of Mr. O’Donnell within the timeframe. In his affidavit to this Court, he avers that were he not an experienced solicitor, he would not have been able to meet the deadline. The High Court judge was aware that he was such an experienced solicitor. In making the application for the adjournment, Mr. O’Donnell did not identify any further evidence which he wished to put before the Court and had not been able to do within the timeframe for the affidavit.

75. The appellants before this Court filed further affidavits and have made extensive written and oral submissions. Whilst they have amplified certain of the facts and submissions previously made, they have not identified any significant new relevant facts which, by reason of the timescale imposed, they were unable to put before the High Court. Similarly, whilst additional submissions were made relevant to the appeal, again, they have not identified any submission they might have wished to make to the High Court judge if an adjournment were granted but which they were unable to make to him on 5th March.

76. For those reasons, the Court has concluded that the High Court judge, in granting short service and giving the directions for the replying affidavit on 3rd March, and refusing the adjournment application on 5th March, in all the relevant circumstances in which these proceedings and the motion were commenced did not act in breach of the appellants’ rights to constitutional justice and fair procedures. Such rights encompass any rights which might be asserted under Article 6.1 of the European Convention.
Admission to the Commercial List
77. The High Court judge admitted the proceedings, upon the application of the respondents, to the Commercial List pursuant to O. 63A, r. 1(b) of the Rules of the Superior Courts. This rule includes in the definition of commercial proceedings for the purposes of O. 63A:

“(b) proceedings in respect of any other claim or counterclaim, not being a claim or counterclaim for damages for personal injuries, which the Judge of the Commercial List, having regard to the commercial and any other aspect thereof, considers appropriate for entry in the Commercial List.”
78. The High Court judge, in his ruling, determined that the proceedings were appropriate for entry into the Commercial List as being within O. 63A, r. 1(b) upon the basis that the owner of the property, the subject matter of the dispute, is Vico Ltd. and that it had given security over the property in respect of debts of the appellants in the approximate sum of €70 million. The Certificate of Ms. Mulconry, a solicitor and partner in the firm of Arthur Cox, had, in addition, relied upon the relationship of these proceedings to the Gorse Hill proceedings [2012 No. 755 P] and summary proceedings [2010 No. 6100 S], both of which had been admitted to the Commercial List.
79. The appellants appeal primarily upon the basis that the purpose of the proceedings is to seek orders that they vacate and yield up possession of what is a family home; that there was a delay in commencing proceedings against the appellants since 2012, and that the appellants were self-represented. As indicated at the outset of this judgment, the decision of the judge in charge of the Commercial List to admit a case pursuant the discretion given him by O. 63A, r. 1(b) is a decision with which this Court would be slow to interfere unless the appellant clearly demonstrates an injustice or error of law in the exercise of the discretion. On the facts pertaining to these proceedings, the Court is not so satisfied. The proceedings have a commercial aspect for the reasons stated by the trial judge, there was no delay by the respondents as the first assertion of a right of residence by the appellants was on 27th February 2015, and the fact that they are self-represented is not a reason of itself not to admit to the Commercial List. It is a matter taken into account in the subsequent case management directions in the Commercial List. Whilst the proceedings undoubtedly relate to the home of their family, the property was given pursuant to arrangements made by the appellants as security for commercial borrowings.
Refusal of Leave to Cross-Examine Deponents
80. Mr. O’Donnell, in the High Court, sought leave to issue a notice of cross-examination of Mr. Brian O’Connor and the Receiver on the affidavits sworn on 3rd March 2015, grounding the motion for the interlocutory injunctions. Ultimately, the High Court judge determined to hear the application in advance of the full hearing of the application for an interlocutory injunction. Having heard the application, he reserved his decision and proceeded with the hearing of the interlocutory application. He gave his decision in a written judgment delivered on 12th March 2015, and refused the application upon the basis that he considered it was not necessary to direct cross-examination of either deponent on their affidavits for the purpose of deciding whether or not the plaintiffs had made out a case for an interlocutory injunction.

81. The High Court judge’s attention was drawn to the following passage from Delaney & McGrath ‘Civil Procedure in the Superior Courts’, 3rd Ed. at para. 20-87, where the authors state in relation to interlocutory applications:

“. . . a notice to cross-examine may only be served with the leave of the Court. It was emphasised by Denham J. in Bula Ltd. v. Crowley (No. 4) [2003] 2 IR 430, 459 that a trial judge has a discretion in relation to such an application. In general, leave will only be granted if there is a conflict of fact upon the affidavits that it is necessary to resolve in order to determine the proceedings . . .”
82. The Court is satisfied that the above is a correct statement of the relevant principles in relation to leave to cross examine on a motion for interlocutory relief in accordance with the judgment of Denham J. in Bula Ltd. v. Crowley (No. 4) provided the reference to “the proceedings” is understood as being the motion seeking the interlocutory injunction or other relief. The Court also considers it consistent with the principles in the judgment of O’Donovan J. in Director of Corporate Enforcement v. Seymour [2006] IEHC 369 which did not relate to an application for interlocutory relief.
83. Mr. O’Donnell, in his replying affidavit before the High Court sworn on 4th March 2015, set out five matters upon which he required to cross-examine Mr. Kavanagh. In addition, he disputed certain of the averments made by Mr. O’Connor in his grounding affidavit.

84. The Court has considered those matters and the 22 matters listed in the appellants’ submissions to this Court upon which it is contended the appellants were entitled to cross-examine Mr. O’Connor and the Receiver before the High Court.

85. The Court considers that the High Court judge was entitled, in the exercise of his discretion, to refuse cross-examination upon the basis he did, namely, that it was not necessary for him to determine any disputed fact for the purpose of deciding the plaintiffs’ application for an interlocutory injunction, having regard to the relevant criteria set out by the Supreme Court in Campus Oil v. Minister for Industry and Energy & Ors. (No. 2) [1983] I.R. 88. Accordingly, the Court rejects the appeal against the refusal to allow cross-examination of Mr. O’Connor and the Receiver.
Interlocutory Injunction
86. The respondents, in submission on their application to the High Court, drew attention to the approach of Laffoy J. in the High Court in Kavanagh & Lowe v. Lynch & Anor. [2011] IEHC 348, on what they submitted was a similar application in not requiring the plaintiffs to establish a strong case to succeed in accordance with the Supreme Court judgment per Fennelly J. in Maha Lingam v. Health Service Executive [2006] ELR 127, and the different approach of Lynch J. also in the High Court in ICC Bank v. Verling [1995] 1 ILRM 123, of so requiring. They submitted that, on the facts, the respondents met either test and the other requirements of the well-established test in Campus Oil v. Minister for Industry and Energy and Others (No. 2) [1983] I.R. 88 to obtain the injunctions sought.

87. In his written judgment on the application for the interlocutory injunction, the High Court judge firstly applied the test in Campus Oil v. Minister for Industry and Energy and Others (No. 2) [1983] I.R. 88, that “a fair bona fide question has been raised by the person seeking relief”. Applying the test to the application as being one to restrain a trespass, he stated that he was following the approach of Laffoy J. in the High Court in Kavanagh and Lowe v. Lynch and Another [2011] IEHC 348, insofar as she had taken the view that where some of the relief sought in an application for an interlocutory injunction to restrain trespass may be formulated in mandatory terms (such as on order directing the defendants deliver up keys, alarm codes and such like) this relief is ancillary to the primary relief sought which, is in substance prohibitory seeking to restrain the defendant’s trespass that the plaintiff in such case does not have to establish “a strong case” that they are likely to succeed and that the normal Campus Oil principles apply.

88. In doing so, he also referred to the judgment of Keane J. in the High Court in Keating & Co. Limited v. Jervis Shopping Centre Limited [1997] I.R. 512 (cited by Laffoy J in Kavanagh v Lynch)where at p. 518 said:-

“It is clear that a land-owner, whose title is not in issue, is prima facie entitled to an injunction to restrain a trespass and that this is also the case where the claim is for an interlocutory injunction only. However, that principle is subject to the following qualification explained by Balcombe L.J. in the English Court of Appeal in Patel v. W.H. Smith (Eziot) Ltd. [1987] 1 W.L.R. 853 at p. 859:-

‘However, the defendant may put in evidence to seek to establish that he has a right to do what would otherwise be a trespass. Then the court must consider the application of the principles set out in American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 in relation to the grant or refusal of an interlocutory injunction.’”
89. The High Court then considered the claim made by the appellants that they have a right of residence in the property at Gorse Hill, but determined by reason of the prior decisions of the High Court and the Supreme Court in the Gorse Hill proceedings, that the mortgage and charge on Gorse Hill are valid and enforceable, that the defendants were “prima facie, trespassing on the property at Gorse Hill” and that the mortgage and charge could be relied upon by the plaintiffs as representing the status quo.
90. The High Court judge identified the status quo at the time the plaintiffs sought the interlocutory injunction as being:

“(a) The owner of Gorse Hill is Vico Limited.
(b) The defendants reside in the United Kingdom.

(c) On 1st June, 2006, Gorse Hill was offered by Vico Limited as security for the indebtedness of the defendants and companies related to them.

(d) By the settlement of 4th March, 2011, the defendants agreed that in the event that the first named plaintiff exercised its security that they would immediately provide vacant possession of the property and cooperate with the first named plaintiff in relation to any sale or disposal of the property.

(e) On 12th December, 2011, the first named plaintiff recovered judgment against the defendants in the sum of €71,575,991.29 and costs.

(f) The second plaintiff was appointed by a deed of appointment dated 7th June, 2012.

(g) This Court and the Supreme Court have held that the mortgages and charges are valid and enforceable.”

The High Court judge emphasised that the purpose of an interlocutory injunction was the preservation of the status quo. He referred to the challenge made by the appellants to the security documents and their contention that they had a right of residence in the property. He made clear that he was not determining any matter and concluded that the plaintiffs had met the test of a fair issue to be tried for the purposes of interlocutory injunction.
91. He held that damages would not be an adequate remedy for the plaintiffs by reason of the Bank’s existing judgment against the defendants and that it was seeking to exercise its powers pursuant to the mortgage and charges against the property at Gorse Hill in partial satisfaction of that claim, which the High Court judge took the view that they could only do if they had vacant possession of the property.

92. On the balance of convenience, the High Court judge held:-

“In the first place, the defendants do not own the property. The legal and beneficial owner is Vico Limited. Secondly, the defendants live in the United Kingdom and have been residing there for some time. It appears that they only returned to Gorse Hill in order to frustrate the attempts of the plaintiffs to take possession of the property which was charged to secure very substantial debts incurred by them and companies related to them. The balance of convenience favours the granting of the interlocutory relief sought.”
93. The notice of expedited appeal issued by the appellants sets out approximately 14 of the grounds of appeal against the grant of the interlocutory injunction. The appellants, in their written and oral submissions, pursued most of those grounds which the Court has considered, and in the interests of clarity has summarised and is expressly dealing with principal grounds in this judgment.
94. The grounds of appeal pursued by the appellants may be conveniently grouped and summarised as follows:-

(1) The High Court judge erred in holding that the plaintiffs, on the facts herein, were only required to establish that there was a bona fide or fair issue to be tried rather than a strong case as the primary relief was in substance a mandatory injunction to vacate a family home and the granting of the judgment would effectively grant to the respondents the relief sought in the proceedings.
(2) The High Court judge erred in determining that the respondents had discharged the burden of establishing they had a prima facie or strong case in particular by reason of the failure of the Bank to execute the Mortgage and the Charge ; alleged defects in the execution of the appointment of the Receiver and the claimed right of residence. A related ground pursued, was that the High Court judge erred in considering the approach identified by Keane J. in Keating and Co. Limited v. Jervis Shopping Centre Limited was applicable as the respondents’ title was in issue and accordingly, that there was an error in his approach to the burden of proof in relation to the right of residence contended for by the appellants.

(3) The High Court judge was in error in his assessment of what constituted the status quo on the application for the injunction.

(4) The High Court judge erred in his determination of where the balance of convenience lay.

95. The appellants, in the High Court and again before the Court of Appeal, submitted that the executions by or on behalf of the Bank of the Deeds of Appointment of the Receiver were defective, in consequence of which the appointment of the Receiver was invalid. In the course of the hearing, Counsel for the respondents sought leave to file affidavits in relation to the execution of the Deed of Appointment of the Receiver. The Court granted permission and gave leave to Mr. O’Donnell to file an affidavit in response if he required. He did so. The additional affidavits were the affidavits of Ms. Helen Nolan and Ms. Nicola Coyle on behalf of the respondents and an affidavit of Mr. O’Donnell.
96. The respondents contested every ground of appeal and submitted that the High Court judge applied the correct legal tests upon the facts before him, correctly identified the status quo, correctly determined that the balance of convenience favoured the respondents and correctly decided that damages would not be an adequate remedy.
Decision on Interlocutory Injunction
97. The Court has concluded that the appellants are correct in their submission that the reliefs sought and facts herein are such that the respondents’ application for an injunction in the terms sought and granted is distinguishable from that which was the subject matter of the application before Laffoy J. in the High Court in Kavanagh & Lowe v. Lynch, and that in substance the primary relief is mandatory in nature, and accordingly, the respondents were required to demonstrate that they had, at least in accordance with the terms used by Fennelly J. in Maha Lingam, “a strong case that [they are] likely to succeed at the hearing of the action”.

98. The second interlocutory relief sought by the respondents in their notice of motion (at para 3) is an order by way of interlocutory injunction compelling the appellants and others to vacate the property at Gorse Hill. An order to that effect was made in the High Court order of 12th March. At the date of commencement of these proceedings on 3rd March, the appellants were residing, albeit only from a few days previously, in Gorse Hill. Similar relief is sought at para. 2 of the General Endorsement of Claim and it is in substance the relief sought by the respondents in these proceedings.

99. Vico Ltd. is the owner of the property as held by the Supreme Court. However, as set out at para.12 of this judgment, the Supreme Court, per Laffoy J. at para. 108 of her judgment of 19th December 2014 determined that on the documentary evidence available in the Gorse Hill proceedings, that there was an arrangement between Vico Ltd. and the appellants whereby Vico Ltd. would allow the appellants and their children reside in Gorse Hill. Laffoy J. expressly refers to “an arrangement between Mr. O’Donnell and Mrs. O’Donnell and Vico Ltd. under which Mr. O’Donnell and Mrs. O’Donnell and their children would be entitled to reside in Gorse Hill”.

100. The respondents accept, as they must do, for the purposes of the motion and appeal the arrangement between Vico Ltd. and the appellants identified by Laffoy J. at para. 108 of her judgment. However, they submit that the entitlement identified therein is dependent upon the continued entitlement of Vico Ltd. to possession of the Gorse Hill property; that Vico Ltd. is no longer entitled to possession of the property; upon his appointment, the Receiver was entitled to go into possession of the property and that the appellants have not established any entitlement to reside in the property which continues beyond the date upon Vico’s right to possession ceases. These latter submissions are considered in more detail below. The respondents in these proceedings are in substance, seeking orders the the appellants vacate and other consequential restraining and mandatory orders which will enable the Receiver take and retain without interference possession of the Gorse Hill property pursuant to clause 9.4.1 of the Mortgage and the Charge. These provide in so far as relevant:

9.4 A Receiver so appointed shall have and be entitled to exercise all powers conferred by . . . .and . . .have power to do the following things either in his own name or in the name of the Borrower :
9.4.1 Take possession:

Take immediate possession of, get in and collect the Secured Assets or any part thereof and . . .

101. The Secured Assets comprise Gorse Hill. It will be recalled that the Receiver was appointed in June 2012, and on 8th June, his solicitors wrote to the Secretary of Vico Ltd. informing him that the Receiver intended to take possession of the property on Wednesday 1st August 2012. The reason for the date of 1st August, rather than any attempt to take immediate possession pursuant to Clauses 9.4.1 of the Mortgage and Charge, appears to be Clause 3.4 of the Settlement Agreement under which the Bank had agreed that it would not seek to gain possession of the Gorse Hill property, inter alia, for a period of 12 months from the date of a breach of the Agreement, and in any event, not later than 1st March 2013. The Settlement Agreement was alleged to have been first breached by the failure to pay the monies due pursuant thereto on 31st July 2011.
102. The Receiver has not yet gone into possession of the property at Gorse Hill. By reason of the Gorse Hill proceedings commenced by the O’Donnell children, the Bank effectively agreed not to seek to go into possession until after the determination of the Supreme Court appeal therein. Following the order of the Supreme Court of 2nd February 2015, the Receiver was to go into possession of the property on the vacation of same by the O’Donnell children by 12.00 noon on 2nd March 2015.

103. Accordingly, it appears to the Court that when the appellants moved back into Gorse Hill at the end of February that as the Receiver had not yet taken possession of Gorse Hill from Vico Ltd. it is at least arguable that they did so pursuant to the prior arrangements with Vico Ltd. It follows, in this Court’s view that the primary relief now being sought by the respondents is mandatory relief to vacate Gorse Hill so as to enable the Receiver go into possession of the property. The other orders are consequential and considered necessary to effectively take and retain possession.

104. The Court has noted from the judgment in Kavanagh & Lowe v. Lynch that the defendants therein were not stated to be residing in the relevant property and there was no order sought requiring them to vacate the property. The Court considers this distinguishes the present application.

105. It follows from this conclusion that as the substance of respondents application for the interlocutory relief sought was mandatory it required to be considered in accordance with what has been referred to a variation of the ‘pure’ Campus Oil test where the courts have required the plaintiff not just to establish a fair or arguable case but rather the higher standard of a strong case in accordance with the Supreme Court judgment of Fennelly J in Maha Lingam.

106. The next issue which the Court must consider, therefore, is whether the respondents have made out a strong case that they are entitled to the relief sought in the proceedings. The principal such relief is the order requiring the appellants to vacate the property at Gorse Hill so that the Receiver may go into possession of the property in accordance with the express right given him under the Mortgage and Charge. The Court accepts that as submitted by the respondents the onus is on the respondents and the approach identified by Keane J. in Keating and Co. Limited v. Jervis Shopping Centre Limited is not applicable on the facts herein.

107. It is important to emphasise that the Court is not determining any issue of fact or law in dispute between the parties in relation to the substantive issues in the proceedings in this judgment. It is only considering and determining whether the respondents have made out a strong case to be entitled to the relief sought.

108. The respondents have, in the Court’s view, established a strong case in favour of the validity and enforceability of the Deeds of Mortgage and Charge of June 2006. They have done so, firstly, by reason of the determinations in judgments of the High Court and Supreme Court in the Gorse Hill proceedings to that effect. Secondly in relation to the objection made by the appellants that the Bank did not execute those documents by reason of the decision of the High Court (Clarke J) in ACC Bank v. Kelly [2011] IEHC 7 to the effect that execution of a mortgage by a mortgagee is not necessary for enforcement.

109. The next issue relates to the validity of the appointment of the Receiver by reason of the nature of the execution of the deeds of appointment. Again, the Court has concluded that the Bank has made out a strong case in favour of the Receiver having been validly appointed pursuant to those documents on 7th June 2012. By reason of the issues raised by the appellants, it is clear that this will continue to be an issue in the substantive proceedings, and accordingly, the Court again emphasises that it is only briefly giving its reasons as to why it considers the respondents have established a strong case in favour of the validity of the appointment of the Receiver and is not determining any of the issues in dispute.

110. The principal reasons for which the Court considers that the Bank has established a strong case on this issue are:

(i) The evidence on affidavit of Ms. Helen Nolan that the Seal affixed to each Deed is the Common Seal of the company known as “The Governor and Company of the Bank of Ireland” and the submission that s. 114 of the Companies Act 1963 does not apply to the Bank.
(ii) The evidence of Ms. Nolan and Ms. Coyle that the latter has been employed as Assistant Secretary of the Bank since 2007.

(iii) Confirmation of the latter’s signature on the Deeds of Appointment.

(iv) The definition of Secretary in the Bylaws of the Bank as last amended on 24th April 2012 and the provisions of Article 113(a) thereof.

(v) Clauses 9.1 of the Mortgage and the Charge which permit the Bank to appoint “under seal or under hand of a duly authorised officer or employee of the Bank any person to be Receiver and Manager . . .” and the submissions made in reliance upon the judgments of the High Court and Supreme Court in Kavanagh v. McLoughlin [2013] IEHC 453, and [2015] IESC 27, and the authorities referred to in those judgments.

111. It follows from the above that the respondents have made out a strong case that as against Vico Ltd the Receiver is entitled to go into possession and Vico Ltd’s entitlement to possession of the property is at an end.
112. The next issue is whether the Bank has made out a strong case that the Receiver is now entitled to an order that the appellants vacate Gorse Hill. This requires the respondents to establish a strong case that the appellants do not have a right of residence in or a right to reside in the Gorse Hill property which extends beyond the right of Vico Ltd. to possession of the property. Again, this will, as a matter of probability, be a major issue in the substantive proceedings and the Court does not wish to prejudice in any way a full assessment and determination of the issue in the substantive proceedings and is therefore confining itself to setting out its conclusion and stating shortly the reasons for which it has reached that conclusion.

113. The Court has concluded that the respondents have made out a strong case that the appellants do not have a right of residence in or a right to reside in Gorse Hill which extends in time beyond the right of Vico Ltd. to possession of the property. The principal reasons for which the Court has reached that conclusion are:

1. The nature of the arrangement between Vico Ltd. and the appellants, as found by Laffoy J. at para. 108 of the Supreme Court judgment already set out.
2. The evidence before the courts in the Gorse Hill proceedings and recorded at paras. 41 and 42 of the judgment of Laffoy J. that in 2006, Mr. O’Donnell was a practising solicitor and partner in the law firm known as Brian O’Donnell & Partners. That firm acted in connection with the taking of the Mortgage and Charge by the Bank in 2006 from Vico Ltd. which did not have separate legal representation. In the course of correspondence in May 2006, Laffoy J. at para. 42 records that “Gartlan Furey (then acting for the Bank) sought confirmation that no person other than Vico Ltd. had made or would make any direct or indirect financial contribution towards the purchase of Gorse Hill or had been or would be the beneficiary of any agreement or arrangement whereby that person had acquired or would acquire any interest in the property or any part thereof. Such confirmation was given in the response”. It would appear that the response was given in a letter dated 18th May 2006 from Brian O’Donnell & Partners and that they were also acting for the appellants herein at that time in connection with the borrowings for which Vico Ltd. was then giving security.

3. The Settlement Agreement entered into by the appellants on 4th March 2011 provides at para. 3.5:

“Brian O’Donnell and Mary Pat O’Donnell agree, subject to paragraph 3.4 above, that in the event that the Bank exercises its security in respect of the property at Gorse Hill that they will immediately provide full vacant possession of the property in good repair and condition and cooperate with the Bank in relation to any sale or disposal of this property”.

Paragraph 3.4 relates to the Bank’s agreement not to seek to gain possession of Gorse Hill prior to 1st March 2013 or 12 months from the date of breach of the Agreement. The Court is aware that the appellants now contend and allege that the Settlement Agreement was procured by fraud. For the purposes of determining whether the respondents have a strong case, it appears that the Court should have regard to the present status of the Settlement Agreement as a valid and binding agreement. This is particularly so having regard to para. 4.1 thereof in which the appellants acknowledge that they had received independent legal advice from Whitney Moore Solicitors prior to entering into the Agreement and that the precise meaning, effect and obligations arising from the Agreement had been fully explained to them.

4. On 18th July 2012, the appellants became Directors of Vico Ltd. In that capacity, they must have been aware of the stated intention of the Receiver to go into possession of the property on 1st August 2012. They did not procure that Vico Ltd commence proceedings, did not commence proceedings themselves nor joined in the proceedings commenced by their children in July 2012, effectively challenging the validity and enforcement of the Bank’s Mortgage and Charge over Gorse Hill and the Receiver’s entitlement to take possession thereof.

5. The two letters relied upon by the appellants, namely, the letter from the appellants to the then trustee of the Discretionary Trust on 20th October 2000, and a letter from Mr. David A. Harris, a Director of IFG International Ltd. of 18th July 2012, do not constitute credible evidence inconsistent with the case being made by the respondents that the appellants’ right to reside in Gorse Hill does not extend in time beyond the right of Vico Ltd. to possession thereof.

114. The Court is, accordingly, satisfied that the respondents have established a strong case that they are likely to succeed at the hearing of the action to obtain the substantive relief of an order that the appellants vacate Gorse Hill and other consequential orders and must now consider, in accordance with the remaining Campus Oil principles, whether damages would be an adequate remedy for the respondents if the injunction were not now granted and they were to succeed at the hearing of the action. The Court agrees with the High Court judge that damages would not be an adequate remedy for the respondents. The appellants are each adjudicated as bankrupt. They have judgments against them in favour of the Bank in the order of €70m. Whilst the Court is aware that the appellants have brought an application to set aside the adjudication and leave to extend time to appeal the judgment of the High Court this Court must consider their position as it now is.
115. On the issue of the adequacy of damages for the appellants if the injunction is granted and the respondents fail at the full hearing, the respondents have given the normal undertaking as to damages. There is no suggestion that they would not be in a position to meet any claim for loss and damage which the appellants might make if the injunction is now granted and the appellant’s were to succeed at the full hearing of the action.

116. These conclusions lead the Court to consider the balance of convenience. The Court considers the balance of convenience favours the upholding of the High Court order granting all the interlocutory injunctions sought including that the appellants vacate Gorse Hill. The Court agrees with the status quo identified by the High Court. The appellants are not the owners of the property. Vico Ltd. is the legal and beneficial owner. Importantly, whilst Gorse Hill is a family home in the sense that when it was acquired it was planned to be the home for the appellants and their children, nevertheless, it has not been the home in which the appellants have resided since the end of 2011. It is common case that the appellants moved to reside in England at that time and have continued to reside in England until they returned at the end of February and made, for the first time, the claim to be entitled to a right of residence in Gorse Hill in their letter of 27th February 2015. During that period, it had been the home of the O’Donnell children, and by order of the Supreme Court of 2nd February 2015, they have been required to vacate the property on 2nd March 2015 and have done so. The appellants are not without a home if the injunction is granted. They have a home in England. In the affidavit sworn in the High Court Mr O’Donnell gives only his English address. In this Court he gives both Gorse Hill and his English home as his address. It is an inevitable inference that the appellants only returned to live in Gorse Hill at the end of February in order to prevent the Receiver taking possession of the property following compliance by their children with the order of the High Court of 12th September 2012 as varied by order of the Supreme Court of 2nd February 2015.

117. The Receiver has been appointed by the Bank since 7th June 2012. In accordance with Clause 9.4.1 of the Mortgage and Charge, as varied by para. 3.4 of the Settlement Agreement, he was entitled to take possession on 1st August 2012. Following the Gorse Hill proceedings commenced by the O’Donnell children, he agreed not to take possession until the determination of those proceedings. In the course of those proceedings, prior to the High Court hearing, there was an application brought on behalf of the children to join additional persons, including Vico Ltd. The application to join Vico Ltd. was not proceeded with. The Bank is owed significant sums for which the Gorse Hill property was given as security pursuant to arrangements made by the appellants. At minimum, if the Receiver takes possession, pending the determination of these proceedings it will be available to rent and provide a rental income which can be applied towards the monies owed to the Bank.
Conclusion
118. The Court dismisses the appeal against all the orders made in the High Court on 12th March 2015. The Court will hear the parties in relation to any variation to the High Court order of 12th March required in the light of the stays placed on the High Court order by this Court until today’s date.

Toal v The Honorable Society of Kings Inns Barristers Disciplinary Tribunal

[2015] IEHC 512

JUDGMENT of Mr. Justice David Keane delivered on the 28th July 2015
Introduction
1. On the 6th May 2015, I made an Order dismissing the present action, together with various consequential orders. I did so because, having failed in two preliminary applications before me, the plaintiff, through Counsel, indicated that he did not intend to open his case or, indeed, to take any further part in the proceedings.

2. In refusing the second of those two preliminary applications, I indicated that I would set out my reasons in a written judgment to be delivered later. This is that judgment.
The first preliminary application
3. The first preliminary application, made without prior notice at the commencement of the trial, sought the adjournment of the trial for an indefinite period on two grounds: first, because the plaintiff’s legal representatives asserted that they were not then ready to proceed; and second, because they submitted that, in common with every other judge of the High Court, I should consider myself disqualified from trying the action.

i. preparedness

4. In relation to the preparedness ground, the following facts are not in issue. The firm of solicitors having carriage of the plaintiff’s case were instructed in September 2014. The proceedings issued in October. The pleadings closed in December. After some initial difficulty finding Counsel willing or available to act, Senior Counsel was instructed on behalf of the plaintiff in January of this year. On the 24th March, by agreement between the parties, Gilligan J. fixed the 5th May as the date for the commencement of the trial of the action. Discovery of documents was to be made by each of the defendants in accordance with an agreed timetable.

5. On Monday, the 27th April, and again on Thursday, the 30th April, an application was made to me on behalf of the plaintiff to adjourn the trial of the action on the ground of the failure by the Barristers Professional Conduct Tribunal (“the Conduct Tribunal”) to comply with the agreed timetable for making discovery. It is common case that the Conduct Tribunal made its discovery one week and one day late. I refused both of those applications, observing on each occasion that, while I would take whatever steps may be necessary to ensure that the plaintiff was not disadvantaged at trial in relation to the late discovery of any document or documents, I was not prepared to vacate the trial date in the absence of the identification of some specific difficulty or prejudice attributable to that delay.

6. In making a further application for the adjournment of the trial on the morning that the trial was due to commence before me, Counsel for the plaintiff again sought to rely on the Conduct Tribunal’s delay in making discovery. In addition, Counsel complained that some further documentation had been disclosed just that morning on behalf of both the General Council of the Bar of Ireland (“the Bar Council”) and the Professional Practices Committee of the Bar of Ireland (“the Committee”) and, further, that the plaintiff wished to take issue with a claim of public interest privilege that had been raised previously by the Honorable Society of King’s Inns Barristers Disciplinary Tribunal (“the Disciplinary Tribunal”).

7. In response, Counsel for the Bar Council and the Committee submitted that only two additional documents had been discovered to the plaintiff by his clients; that the existence of each of those documents was already known to the plaintiff; and that the disclosure of their contents could not give rise to any new issue or concern. Counsel for the Disciplinary Tribunal responded that, although the privilege it asserts against the disclosure of its internal communications – as those of an adminstrative tribunal exercising quasi-judicial functions – is, in his submission, a well-established one, in order to prevent any unnecessary delay in the opening of the case instructions would be taken concerning whether that privilege might be waived, failing which it was acknowledged that another judge would have to hear the plaintiff’s challenge to the assertion of that privilege, since it may be necessary, as part of the Court’s deliberations, to inspect the documents at issue.

8. In the course of argument, it emerged that the relevant claim of privilege had been asserted in an affidavit of discovery delivered on the 22nd April 2015; had been challenged by letter dated the 27th April 2015; and had been reasserted in a letter of reply dated the 28th April 2015, subsequent to which motion papers in respect of a proposed challenge to that claim were first produced in court on the 5th May 2015, in the course of the plaintiff’s application for an adjournment of the trial.

9. Having considered the facts and argument that I have just summarised, I refused the plaintiff’s application on the same basis as I had twice refused a similar application on behalf of the plaintiff previously, i.e. that while I was prepared to take all steps necessary to prevent the plaintiff from being disadvantaged by any specific difficulty or prejudice that might be identified attributable to the late discovery of any document or documents (or any privilege found to be wrongly asserted over the contents of any such document), I was not prepared to adjourn the trial of the action on the basis of an assertion of unspecified general prejudice that may be caused thereby.

ii. bias and the rule of necessity

10. The second ground upon which the plaintiff based his first preliminary application is that, in acknowledgment of the fact that every judge of the High Court (including myself), and of the Court of Appeal and Supreme Court is a bencher of the Honorable Society of King’s Inns (“the Society”), I should adjourn the trial of the present action to await the possibility that the Government might introduce, and the Oireachtas might pass, legislation that would alter that position in some way so that the action might then be heard before a judge of the High Court who is not a bencher, and whose decision would be capable of appeal to an appellate court comprised of judges none of whom is a bencher.

11. In that regard, I was informed by Counsel for the plaintiff that a letter marked “extremely urgent” had been sent to the Attorney General by fax at 5.30 p.m. on the previous day, the 4th May 2015, a bank holiday. The letter was copied to the President of Ireland and to the Minister for Justice and Equality. In it, the Attorney General was requested to bring the matter to the attention of the Government on the basis that “if [the plaintiff’s] constitutional rights are to be vindicated … it is now necessary for the Government to immediately legislate to proscribe the benching of judges and [of the] Attorney General by the [S]ociety and, upon it having done so, to then appoint a sufficient number of non-benched individuals as judges so as to allow [the plaintiff] to litigate the matter at first instance and if necessary on appeal.”

12. In making the submission I have just described, Counsel for the plaintiff approached the matter as though it were an issue of first impression. Counsel cited no authority for the plaintiff’s argument and, although he acknowledged, in passing, the existence of the legal doctrine of the rule of necessity, he did so only in order to assert that it could have no application to the present case, which he described as unprecedented and unique. When asked why the argument had not been raised in the appropriate manner and in good time prior to a trial date fixed many weeks earlier, in proceedings that had been commenced more than six months ago and in which Senior Counsel had been instructed several months previously, Counsel for the plaintiff informed the Court that the issue simply had not occurred to the plaintiff’s legal representatives until, as part of their final preparations for the trial of the action, they had met on the previous Sunday, the 3rd May.

13. In response to that submission, Counsel for the Disciplinary Tribunal provided a short chronology of the events that have given rise to the present action. He stated that the proceedings have at their root a complaint made by a member of the public who is a former client of the plaintiff. That complaint was made to the Bar Council and the Conduct Tribunal in March 2010, in relation to a series of alleged events that concluded in February 2010 but which began a number of years before that. Matters proceeded before the Conduct Tribunal until December 2012, when they came before the Disciplinary Tribunal. Hearings before it commenced in February 2013 and, after certain unavoidable delays, a substantive hearing took place in April 2014, followed by a decision delivered in June 2014, making findings of misconduct against the plaintiff. The matter was then adjourned for a further hearing on the question of sanction and it was at that point that the present proceedings were instituted in October 2014. The Disciplinary Tribunal subsequently indicated that it would not deal with the issue of sanction on foot of its decision pending the determination of these proceedings, on the proviso that the proceedings were to be determined promptly in the interest of all parties.

14. Counsel for the Disciplinary Tribunal then submitted as follows. The Society has exercised a disciplinary function in relation to the barristers’ profession for centuries under the common law. That function has been provided for in every iteration of the Rules of the King’s Inns (“the Rules”), certainly since the plaintiff was called to the Bar. Upon his or her call to the Bar, every barrister signs a memorial undertaking to comply with the Rules. The Rules provide in the clearest possible terms that all judges of the Superior Courts are ex officio benchers of the Society.

15. These proceedings having commenced in October 2014, on the 28th November 2014, the plaintiff’s legal representatives were furnished, at their request, with a copy of every iteration of the Rules published from 2000 to the present, recording the various amendments to the Rules during that period. Accordingly, the first-defendant submits that the relevant rule is one that should be known by all barristers – including the plaintiff – from the commencement in practice of each; that the rule has been at all times evident from the Rules available to all barristers; and that the rule is, in any event, one contained in the copies of the Rules that were furnished to the plaintiff’s legal representatives on the 28th November 2014.

16. On the legal argument raised by the plaintiff, Counsel for the Disciplinary Tribunal had this to say. It is not the first time that proceedings have come before the courts in which all members of the judiciary have an interest in the subject of a claim and which, on a strict view of the rule of bias, none should hear, but of course the law has to accommodate such a situation and does so through the application of the rule of necessity.

17. Within the limited period afforded to the defendants to consider the relevant law on an application of which they had little or no prior notice, the Disciplinary Tribunal identified two decisions of particular relevance. The first is that of O’Byrne v. Minister for Finance [1959] 1 I.R. 1, a case in which both the High Court and the Supreme Court applied the rule of necessity in considering a challenge brought by the widow and executrix of a deceased judge of the Supreme Court (and, earlier, of the High Court) to the deductions from that judge’s remuneration that had been made in respect of his liability to income tax, and assessments of his liability to super-tax or sur-tax, on the ground that such deductions were expressly prohibited under Article 68 of the Constitution of the Irish Free State, which provided in relevant part that the remuneration of judges of the Supreme Court and High Court “may not be diminished during their continuance in office.” As it transpired, the action was dismissed in the High Court and the appeal against that decision was dismissed by the Supreme Court. But in each instance, it is clear that the Court was being asked to consider an issue in which each judge comprising it was directly and necessarily interested.

18. The second case relied upon by the defendants is that of Flynn v. Allen and The Honorable Society of King’s Inns, unreported (High Court, Lynch J.), 2nd May 1988. It involved an application brought on behalf of the Society to strike out three separate sets of proceedings as against it or those of its benchers individually sued in that capacity. In the first two sets of proceedings the Society itself was identified as the second-defendant and, in the third set of proceedings, certain benchers of the Society (including certain judges of the Superior Courts) appear to have been randomly selected by the plaintiff to be sued as representative defendants on the Society’s behalf. In dealing with those applications, the Court addressed – of its own motion – the same point that the plaintiff in this case now raises. Lynch J. then addressed it in the following terms:

“Now, the actions are in effect actions brought by the plaintiff against the first defendant in the case of the first two actions, the second defendants being in effect Benchers of the King’s Inns. In the case of the third action, as I have said, it is against some of the Benchers who are named individually, though not all. Even though I am not one of those Benchers named in [the third action], I am, of course, as is every other High Court judge and judge of the Supreme Court a Bencher of the King’s Inns and I am conscious of the fact that in one sense I myself could be said to be a defendant in these matters.
Be that as it may, the matter has to come to be decided by some Judge of the High Court and it has come before me and I must not shirk my duty in dealing with it.

I have been referred to the decisions of the High Court and the Supreme Court in the case of O’Byrne v. Minister for Finance and the Attorney General [1959] 1 I.R. 1 and of course the difficulty that arises here arose there. The necessity for proceeding notwithstanding that unfortunate difficulty was emphasised and I accept that is so and that I should and must deal with the matter.”

19. Lest it be imagined that the jurisprudence just described represents an eccentric adventure of the common law embarked upon uniquely in Ireland, Counsel for the Disciplinary Tribunal further relied upon the following passage from Hogan and Morgan, Administrative Law in Ireland 4th edn. (Dublin 2010) (at para. 13.98):
“Throughout the common law world, the no bias rule gives way to necessity in as much as the disqualification of the adjudicator will not readily be permitted to destroy the ony tribunal with power to decide. Consider, for example, O’Byrne v. Minister for Finance in which the High Court and Supreme Court were obliged to pass judgment on the constitutionality of legislation rendering them (and their judicial brethren) liable to income tax on their salaries.”
20. In Woolf, Jowell, Le Sueur (eds.), De Smith’s Judicial Review 6th ed. (London 2007), the matter is addressed in the following terms (at para. 10-059):
“There are two ways in which the doctrine of “necessity” has been held to apply. First, if the person who makes the decision is biased, but cannot effectively be replaced, e.g. if a quorum cannot be formed without him. Secondly, where the administrative structure makes it inevitable that there is an appearance of bias.
Illustrations

• If proceedings were brought against all the superior judges, they would have to sit as judges in their own cause; 2 Roll.Abr. 93, pl.6; and 16 Vin.Abr (end edn), 573 et seq, citing 15th-century cases. In such a situation, a judge may even, in theory, be obliged to hear a case in which he has a pecuniary interest; Great Charte v Kennington (1742) 2 Str. 1173; R. v Essex Justices (1816) 5 M. & S. 513; Grand Junction Canal Co v Dimes (1849) 12 Beav. 63; Dimes v Grand Junction Canal Proprietors (1852) 3 H.L.C. 759 at 778-779; Ranger v Great Western Ry (1854) 5 H.L.C. 72, 88. ” (footnotes inserted)

21. Amongst the cases cited in a footnote to a later portion of the same paragraph are: “Philips v Eyre (1870) L.R. 6 Q.B. 1; and The Judges v Attorney General for Saskatchewan (1937) 53 T.L.R. 464 (judges required to rule on the constitutionality of legislation rendering them liable to pay more income tax); Willing v Hollobone (No. 2) (1975) 11 S.A.S.R. 118 (magistrates not disqualified for bias, inter alia, because the ground applied to all magistrates); Re Caccamo and Minister of Manpower and Immigration (1977) 75 D.L.R. (3rd) 720 (disqualification applicable to all immigration officers).”
22. I pause here to note that, in so far as the plaintiff’s argument suggests, without expressly stating, that the rule of necessity properly considered cannot apply to the case at hand because it is unnecessary or inappropriate for the judiciary to play any part in the regulation or supervision of the Bar, I should point out that that does not seem to be a view that commands any support either in this jurisdiction or, indeed, in most, if not all, of the rest of the common law world.

23. To take a single example, in Anonymous v. Grievance Committee for the Second and Eleventh Judicial Districts of the State of New York 136 A.D.2d 344; 527 N.Y.S. 2d 248, the Appellate Division of the Supreme Court of New York considered an appeal against the refusal of a preliminary injunction to stay an investigation into an alleged violation of the applicable attorney professional conduct rules by the appropriate committee charged with that responsibility in the relevant part of New York State.

24. The Grievance Committee had commenced an investigation, sua sponte, concerning whether the applicant attorney was in breach of a rule requiring disclosure of an attorney’s name and address in the text of any advertisement published by that attorney. The applicant wished to challenge the relevant rule on free speech grounds. However, the “Rules of Professional Conduct (22NYCRR)” of which that rule was one were promulgated as “Joint Rules of the Appellate Divisions of the New York Supreme Court.” The Appellate Division (per Mangano J.P., Thompson, Lawrence and Weinstein JJ concurring) dealt with the bias issue in the following terms:

“Before turning to the merits of the instant appeal, we “dispose of any speculation” that because this court promulgated 22 NYCRR 691.22(k), the members of this court should decline to participate in the instant appeal (Matter of Morgenthau v Cooke, 56 NY2d 24, 29, n 3) … Since this court has exclusive jurisdiction over this case at this stage of the proceedings, and no other judicial body without similar interests exists to which this appeal could be referred for disposition “the present members of the court are required to hear and dispose of it under the Rule of Necessity” (Maresca v Cuomo, 64 NY2d 242, 247, n 1, appeal dismissed 474 U.S. 802; Matter of Morgenthau v Cooke, supra).
25. As cases such as the one I have just cited illustrate, there is a widely held view that the judicial arm of government plays an important and necessary role in the regulation or supervision of practising lawyers.
26. Both Counsel for the Bar Council and the Committee and Counsel for the Conduct Tribunal adopted the submissions made on behalf of the Disciplinary Tribunal on the application of the rule of necessity to the circumstances of the present case.

27. Although, in opening his application, Counsel for the plaintiff had not informed the Court of either the relevant decision in Flynn v. Allen or the binding authority constituted by the judgment of the Supreme Court in O’Byrne v. Minister for Finance, in his reply he invited the Court to refuse to follow Flynn as wrongly decided and to distinguish the facts in O’Byrne from those at issue in the present case, as, in the former, neither the Court nor any of its constituent judges was a party to the action.

28. In Irish Trust Bank Ltd. v. Central Bank of Ireland [1976-1977] ILRM 50, Parke J. stated:

“I fully accept that there are occasions on which the principle of stare decisis may be departed from but I consider that these are extremely rare. A court may depart from a decision of a court of equal jurisdiction if it appears that such a decision was given in a case in which either insufficient authority was cited or incorrect submissions advanced or in which the nature and wording of the judgment itself reveals that the judge disregarded or misunderstood an important element in the case or the argument submitted to him or the authorities cited or in some other way departed from the proper standard to be adopted in judicial determination.”
29. Those principles were reformulated more recently by Clarke J. in Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189 in the following terms:
“It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong. Huddersfield Police Authority -v- Watson [1947] K.B. 842 at 848, Re Howard’s Will Trusts, Leven & Bradley [1961] Ch. 507 at 523. Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area may be said to have advanced in the intervening period.”
30. O’Byrne v. Minister for Finance was a case in which the rule of necessity was applied, if not expressly invoked, by the High Court and Supreme Court. In Collins v. County Cork VEC, unreported, High Court, May 26, 1982, Murphy J. expressed the view that it was the “clear constitutional duty” of the Supreme Court to decide the O’Byrne case, “notwithstanding the interest which the members of the court had in the outcome.” In O’Neill v. Irish Hereford Breed Society Ltd [1992] 1 I.R. 431 (at 449), Murphy J. again described the relevant constitutional duty to decide the issue that arose in O’Byrne as “inescapable.”
31. The rule of necessity was considered in some detail, and applied, by the United States Supreme Court in U.S. v. Will 449 U.S. 200 (1980). That case involved an appeal by the United States Government against certain decisions of the U.S. Federal District Court striking down various statutory provisions freezing cost of living increases in federal judicial salaries at the suit of a number of United States District Court Judges, as contrary to the Compensation Clause of the United States Constitution whereby the compensation of federal judges “shall not be diminished during their Continuance in Office.” Delivering the opinion of the Court, in which all other Members joined, except Blackmun J., who took no part in the decision of the cases, Burger C.J. addressed the issues of jurisdiction, disqualification and the rule of necessity in the following terms 9 (at 210-218):

“ A
Jurisdiction
Although it is clear that the District Judge and all Justices of this Court have an interest in the outcome of these cases, there is no doubt whatever as to this Court’s jurisdiction [449 U.S. 200 211] under 28 U.S.C. 1252 9 or that of the District Court under 28 U.S.C. 1346 (a) (2) (1976 ed., Supp. III). 10 Section 455 of Title 28 neither expressly nor by implication purports to deal with jurisdiction. On its face 455 provides for disqualification of judges under specified circumstances; it does not affect the jurisdiction of a court. Nothing in the text or the history of 455 suggests that Congress intended, by that section, to amend the vast array of statutes conferring jurisdiction over certain matter on various federal courts.

B
Disqualification
Jurisdiction being clear, our next inquiry is whether 28 U.S.C. 455 or traditional judicial canons operate to disqualify all United States judges, including the Justices of this Court, from deciding these issues. This threshold question reaches us with both the Government and the appellees in full agreement that 455 did not require the District Judge, and does not now require each justice of this Court, to disqualify himself. Rather, they agree the ancient Rule of Necessity prevails over the disqualification standards of 455. Notwithstanding this concurrence of views resulting from the Government’s concession, the sensitivity of the issues leads us to address the applicability of 455 with the same degree of care and attention we would employ if the Government asserted that the District Court lacked jurisdiction or that 455 mandates disqualificaiton of all judges and justices without exception.

In federal courts generally, when an individual judge is disqualified from a particular case by reason of 455, the disqualified judge simply steps aside and allows the normal administrative processes of the court to assign the case to another judge not disqualifed. In the cases now before us, however, all Article III judges have an interest in the outcome; assignment of a substitute District Judge was not possible. And in this Court, when one or more Justices are recused but a statutory quorum of six Justices eligible to act remains available, see 28 U.S.C. 1, the Court may continue to hear the case. Even if all Justices are disqualified in a particular case under 455, 28 U.S.C. 2109 authorizes the Chief Justice to remit a direct appeal to the Court of Appeals for final decision by judges not so disqualified. However, in the highly unusual setting of these cases, even with the authority to assign other federal judges to sit temporarily under 28 U.S.C. 291-296 (1976 ed. And supp. III), it is not possible to convene a division of the Court of Appeals with judges who are not subject to the disqualification provisions of 455. It was precisely considerations of this kind that gave rise to the Rule of Necessity, a well-settled principle at common law that, as Pollack put it, “although a judge had better not, if it can be avoided, take part in the decision in a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.” F. Pollack, A First Book of Jurisprudence 270 (6th ed. 1929).

C
Rule of Necessity
The Rule of Necessity had its genesis at least five and a half centuries ago. Its earliest recorded invocation was in 1430, when it was held that the Chancellor of Oxford could acts as judge of a case in which he was a party when there was no provision for appointment of another judge. Y. B. Hil. 8 Hen. VI, f. 19, pl. 6. Early cases in this country confirmed the vitality of the Rule.

The Rule of Necessity has been consistently applied in this country in both state and federal courts. In State ex rel. Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P.2d 652 (1943), the Supreme Court of Kansas observed:

“[I]t is well established that actual disqualification of a member of a court of last resort will not excuse such member from performing his official duty if failure to do so would result in a denial of a litigant’s constitutional right to have a question, properly presented to such court, adjudicated.” Id., at 629, 143 P.2d, at 656.

Similarly, the Supreme Court of Pennsylvania held:

“The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest – where no provision is made for calling another in, or where no one else can take his place – it is his duty to hear and decide, however disagreeable it may be.” Philadelphia v. Fox 64 Pa. 169, 185 (1870).

Other state and federal courts have also recognized the Rule. The concept of the absolute duty of judges to hear and decide cases within their jurisdiction revealed in Pollack, supra, and Philadelphia v. Fox, supra, is reflected in decisions of this Court. Our earlier cases dealing with the Compensation Clause did not directly involve the compensation of Justices or name them as parties, and no express reference to the Rule is found. See, e.g., O’Malley v. Woodrough, 307 U.S. 277 (1939); O’Donoghue v. United States 289 U.S. 516 (1933); Evans v. Gore, 253 U.S. 245 (1920). In Evans however, an action brought by an individual judge in his own behalf, the Court by clear implication dealt with the Rule:

“Because of the individual relation of the members of this court to the question…, we cannot but regret that its solution falls to us…. But jurisdiction of the present case cannot be declined or renounced. The plaintiff was entitled by law to invoke our decisions on the question as respects his own compensation, in which no other judge can have any direct personal interest; and there was no other appellate tribunal to which under the law he could go.” Id., at 247-248.

It would appear, therefore, that this Court so took for granted the continuing validity of the Rule of Necessity that no express reference to it or extended discussion of it was needed.” (footnotes omitted)
32. Turning back from the persuasive opinions of respected jurists in other common law jurisdictions to the decision in Flynn v. Allen, I can find nothing in it which suggests that Lynch J. disregarded or overlooked any relevant authority in that case. Nor is there any suggestion that the principles underpinning the decision have been in any way altered or amended, much less doubted or reversed, in any subsequent jurisprudence. Accordingly, I view the present action in the same light as Lynch J. considered the application in Flynn v. Allen, which is to say “the matter has to come to be decided by some Judge of the High Court and it has come before me and I must not shirk my duty of dealing with it.”
33. On the second point, I do not think that the facts of the present case can be distinguished from those at issue in O’Byrne v. Minister for Finance (or, indeed, in Flynn v. Allen) in any meaningful way. I am not a party to the present action, nor is the Society of which I am a bencher. The first-defendant – the Society’s Barristers Disciplinary Tribunal – is comprised of benchers, although, needless to say, I am not and was not a member of it. In that sense, I am in a broadly equivalent position to that of the Court in both Flynn v. Allen (where both the judge and certain defendants were benchers of the Society) and O’Byrne v. Minister for Finance (where both the Court and the deceased spouse of the plaintiff were judges). On the other hand, because no action has been brought against the Society, as opposed to its Barristers Disciplinary Tribunal, I am not so directly interested in the proceedings as could have been said about Lynch J. in Flynn v. Allen.

iii. the separation of powers

34. I do not accept that the decision in Flynn v. Allen can be distinguished from the present case simply because here the plaintiff’s solicitors have written to the Government demanding immediate legislative action along certain lines they have prescribed. It has at all times been open to the Government and, indeed, the Oireachtas to legislate as it sees fit in relation to this or any other matter – it does not require an invitation, or demand, from the plaintiff’s solicitors to make the enactment of relevant legislation a possibility where otherwise it would not have been. Moreover, even if it is correct to suggest that situations like the present one, which have been found to require the application of the rule of necessity throughout the common law world, can instead be readily avoided through some form of appropriate legislative intervention, a proposition which I very much doubt, in my view it would be fundamentally inconsistent with the doctrine of the separation of powers to adjourn any action (thereby abdicating or, certainly, suspending the judicial function) pending the suggested introduction of relevant legislation by the Executive or its enactment by the Oireachtas.

35. As Finlay C.J. put the matter in Crotty v An Taoiseach [1987] IR 713 (at 772):

“[The separation of powers] involves for each of the three constitutional organs not only rights but duties also; not only areas of activity and function, but boundaries to them as well. With regard to the legislature, the right and duty of the courts to intervene is clear and express.
1. Articles 15.4, 34.3.2°and 34.4.4° vest in the High Court and, on appeal, in this Court the right and duty to examine the validity of any impugned enactment of the Oireachtas, and if it be found inconsistent with the Constitution, to condemn it in whole or in part.

2. Article 26 confers on this Court the duty upon the reference to it by the President of a Bill passed or deemed to have been passed by both Houses of the Oireachtas, to decide whether such Bill or any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision thereof.

3. The courts do not, in my opinion, have any other right to intervene in the enactment of legislation by the Oireachtas.”

iv conclusion
36. For all of the foregoing reasons, I was satisfied that the trial of the plaintiff’s action was one that I should, and must, deal with on its merits and without further unnecessary delay. Therefore, I refused the plaintiff’s application for an adjournment. However, since the relevant argument had by then taken up the greater part of what should have been the opening day of the trial, on the application of the plaintiff’s Counsel I adjourned the commencement of the trial until the following day.
The second preliminary application
37. The trial did not commence the following morning. Instead, Counsel for the plaintiff submitted that, in view of the Court’s rulings of the previous day, the plaintiff was being deprived of his right to a fair hearing before an independent and impartial judge, in breach of the Constitution of Ireland, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. Counsel for the plaintiff then stated “that the plaintiff will not be taking any further steps in this proceeding as presently constituted lest he be seen to be participating or acquiescing in a proceeding that he believes to be unlawful.”

i. application for an Article 267 reference

38. Somewhat peculiarly, having just made that statement, Counsel for the plaintiff next requested the Court to make a reference for a preliminary ruling to the Court of Justice of the European Union (“the CJEU”), pursuant to the terms of Article 267 of the Treaty on the Functioning of the European Union (“the TFEU”), in respect of three questions that the plaintiff wished to have referred. Subsequently, Counsel for the plaintiff clarified that his instructions were to take no further part in the proceedings should his application for a preliminary reference to the CJEU be refused.

39. Once again, it was acknowledged that the application was being made without prior notice of any kind to either the defendants or the Court. Counsel for the plaintiff could provide no satisfactory explanation for the plaintiff’s failure to raise the matter in the appropriate manner in good time prior to the date fixed for the trial of the action or, indeed, as part of the application that had been made on the previous day. Nevertheless, I permitted the application to proceed.

40. The question that the plaintiff sought to have referred to the CJEU was, in substance, whether my refusal to acknowledge myself and every other judge of the Superior Courts disqualified from hearing the plaintiff’s action (or any appeal thereon) and, therefore, to adjourn it sine die, amounts to a breach of the plaintiff’s right under Article 47 of the EU Charter of Fundamental Rights of the European Union 2010/C 83/02 (“the Charter”) to an effective remedy against the violation of the rights and freedoms guaranteed to him by the law of the European Union through a hearing by “an independent and impartial tribunal previously established by law.”

41. In support of the plaintiff’s application for a reference, reliance was placed on a wide range of decisions of the CJEU on the question of what constitutes a “court or tribunal of a Member State” for the purposes of Article 267 of the TFEU. However, that does not seem to me to be of assistance to the plaintiff in circumstances where calling into question the status of this Court as a “court or tribunal of a member state” capable of requesting a preliminary ruling from the CJEU, as the plaintiff’s Counsel appeared to do in suggesting that this Court fails to meet the necessary criteria of independence and impartiality, could only have the effect of calling into question the Court’s jurisdiction to do the very thing that the plaintiff is asking it to, i.e. to make a reference. For the avoidance of doubt, I am satisfied that this Court has the necessary characteristics to fall squarely within the expression “court or tribunal” as a concept of Community law under Article 267 of the TFEU.

42. The field of application of the Charter is addressed by Article 51 of that instrument, which states:

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.”

43. In Case C-206/13 Siragusa v Regione Sicilia – Soprintendenza Ben Culturali e Ambientali di Palermo, 6 March 2014, the CJEU reiterated that it has no jurisdiction to examine the compatibility with the Charter of national legislation falling outside the scope of EU law (at paragraph 21). It is only where legislation (or other national law) that falls within the scope of EU law is at issue, that the CJEU, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation (or law) is compatible with the fundamental rights the observance of which the Court ensures; Case C-617/10 Akerberg Fransson [2013] ECR, paragraph 19, and the case-law cited).
44. The CJEU continued (at paragraph 22) that, taking into consideration the explanations relating to Article 51 of the Charter, in accordance with the requirement to do so under the third subparagraph of Article 6(1) TEU and article 52(7) of the Charter, the obligation to respect fundamental rights defined in the context of the European Union is binding upon the Member States only in respect of matters covered by EU law.

45. At paragraph 24 of the judgment, the CJEU further clarified that the concept of “implementing Union law” as referred to in Article 51 of the Charter, requires a degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other; Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 16.

46. The CJEU then stated as follows (at paragraph 25):

“In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it (see Case C-309/96 Annibaldi [1997] ECR I-7493, paragraphs 21 to 23; Case C-40/11 lida [2012] ECR, paragraph 79; and Case C-87/12 Ymeraga and Others [2013] ECR, paragraph 41).”
47. In the context of an express reference in the first of the three questions in respect of which the plaintiff seeks a preliminary reference to “the exercise of the right of establishment and [the right] to provide services [in] any Member State pursuant to Article 15 of the Charter” and an assertion in argument by the plaintiff’s Counsel that the imposition of the sanction of suspension from practice could prevent the plaintiff from engaging in practice as a lawyer elsewhere in the EU, it appeared to be suggested in the course of the present application, for the first time, that the plaintiff’s right of establishment or right to provide services in another Member State as a matter of Union law is indirectly in issue in these proceedings.
48. However, nothing has been pleaded that would suggest any intention, much less attempt, by the plaintiff to exercise any such right of establishment or right to provide services in any other Member State. There is nothing in the plaintiff’s 74-page statement of claim or in the 11-page general indorsement of claim contained in the plenary summons issued on his behalf that would enable the Court to identify any relevant provision of Union law the implementation of which might be in issue in these proceedings, despite the noteworthy prolixity of each of those documents.

49. And, of course, in circumstances where the plaintiff has adopted the position that the preliminary reference he seeks must precede the commencement of the trial of his action, upon which he is not otherwise willing to embark, there is no relevant evidence (indeed, no evidence whatsoever) before the Court at this stage of the proceedings that would permit the Court to conclude that the plaintiff’s complaint concerns any legal measure involving the implementation of EU law.

50. Accordingly, I can find no basis to conclude that any issue arises in these proceedings concerning either the interpretation of the Treaties or the validity or interpretation of any act of any institution, body, office or agency of the Union such as would confer upon this Court a discretion to request the CJEU to give a preliminary ruling upon it and the plaintiff’s application must therefore fail in limine.

51. Lest I am mistaken in that view and, should it arise, in order to facilitate a more comprehensive and effective appeal, I propose finally to consider the issue of whether it would have been appropriate to exercise the relevant discretion to request a preliminary reference, had I been persuaded that a question of the implementation of EU law is in issue in this case.

52. In the first place, I do not accept that this Court consitutes a court or tribunal against whose decisions there is no judicial remedy under national law. While it may be argued that the members of the Court of Appeal and Supreme Court are each susceptible to the same objection of bias that the plaintiff makes in respect of myself and every other judge of the High Court, it is possible that on appeal to either of those courts a different view may be taken on the validity or application of the rule of necessity in the circumstances presented. Accordingly, I do not consider myself bound to bring the matter before the CJEU, as I would be if I did constitute such a court or tribunal and if none of the exceptions to that requirement was otherwise applicable.

53. Second, in my view the position in this case is far closer to that contemplated by the European Court of Justice in Irish Creamery Milk Suppliers Association v. Ireland (Cases C-36/80 and C-71/80) [1981] ECR I-735 than that which arose before this Court in Digital Rights Ireland Ltd v. Minister for Communications [2010] 3 IR 251. Unlike the latter, this is not a case that involves a challenge to specific provisions of national and EU law that speak for themselves. Nor is this a case in which a ruling is sought that only the CJEU could provide on the validity of Community law.

54. In the Irish Creamery Milk Suppliers Association case, the European court of Justice dealt in the following terms with an issue raised concerning the discretion to make a preliminary reference:

“First Question
4. The first question raised by the High Court of Ireland is worded as follows:

‘Was the decision by the High Court, at this stage of the hearing, to refer to the European Court under Article 177 of the Treaty, the question set out in paragraph 2 below a correct exercise on the part of the High Court of its discretion pursuant to the said Article?’

5. Before an answer is given to that question it should be recalled that Article 177 of the Treaty establishes a framework for close cooperation between the national courts and the Court of Justice based on the assignment to each of different functions. The second paragraph of that Article makes it clear that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling.
6. The need to provide an interpretation of Community law which will be of use to a national court makes it essential, as the Court has already state in its judgment of 12 July 1979 (Case 244/78 Union Laitiere Normande (1979) ECR 2663) to define the legal context in which the interpretation requested should be placed. From that aspect, it might be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court of Justice so as to enable the latter to take cognizance of all of the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give.

7. However, those considerations do not in any way restrict the discretion of the national court, which alone has a direct knowledge of the facts of the case and of the arguments of the parties, which will have to take responsibility for giving judgment in the case and which is therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling from the Court of Justice.”

55. In this case, I am satisfied that it would be entirely inappropriate to contemplate a preliminary reference to the CJEU before the issues have been identified and the factual matrix in which they arise has been defined. I pause here to note that the plaintiff failed to comply with a direction issued by the Court that he produce an issue paper no later than the day prior to the commencement of the trial with a view to having it agreed between the parties. As I have already observed and by way of a single example, it seems to me that, insofar as a suggestion has been made in the context of the present application for a preliminary reference that an issue arises concerning the plaintiff’s right of establishment or right to provide services in another Member State, before making a preliminary reference it would first be necessary to properly identify that issue, whether in the pleadings exchanged or in an issue paper agreed, or both, and, potentially, to establish in evidence the relevant facts, in order to permit the CJEU to take cognisance of the features of fact and law which may be relevant to any interpretation of EU law that it may be called upon to give. In circumstances where that has not been done, I am of the view that, even if a question of the implementation of EU law was potentially in issue in this case, it would be entirely premature to request a preliminary ruling from the CJEU at this point in the proceedings, and I would have exercised my discretion to refuse to make such a request accordingly.
Conclusion
56. The foregoing are my reasons for refusing the various preliminary applications that have been made on behalf of the plaintiff. Having announced to the parties that I was refusing the plaintiff’s application for a preliminary reference to the CJEU, I afforded the plaintiff a further brief opportunity to consider whether he was prepared to open his case, following which I was informed that the plaintiff had instructed his legal representatives that he did not wish to take any further part in the proceedings. In those circumstances, I acceded to an application made on behalf of each of the defendants for an Order dismissing the case against it.

McMenamin v. Ireland

 

[1997] 2 I.L.R.M. 177
Hamilton CJ

This is an appeal brought by the respondents against a portion of the judgment delivered by Geoghegan J on 23 June 1994 and a portion of the order made by him in pursuance of the said judgment, on 1 July 1994.

The portion of the order against which the respondents have appealed is that which provided that:

The court doth declare that the State in permitting a gross inequality to arise between the reduction in pension of District Court judges and the costs of the lump sum gratuities intended to be met by such reduction is in breach of its constitutional duty to secure pension rights for district judges which are not irrational or wholly inequitable.

The order was made on foot of proceedings for judicial review instituted by District Judge McMenamin, the applicant herein, (hereinafter referred to as ‘the applicant’) and which related to the lump sum payable to him and other judges of the District Court on their retirement and the method of calculation thereof.

By order of the High Court made on 19 April 1993 the applicant had been granted leave to apply by way of an application for judicial review for:

(a) an order of certiorari quashing a decision of the Minister for Justice (‘the minister’) dated in or about 6 January 1993 which refused to change the pension arrangements for judges of the District Court, including the applicant;

(b) a declaration that s. 2(5) of the Court of Justice and Court Officers (Superannuation) Act 1961 and paragraph 8(2) of Part III of the Second Schedule of the Courts (Supplemental Provisions) Act 1961 are unconstitutional and of no effect;

(c) further and other relief;

(d) costs.

In pursuance of such leave, the applicant caused to be issued a notice of motion dated 23 April 1993 claiming the said relief, which motion was served on the Chief State Solicitor on behalf of the respondents.

The grounds upon which such relief was sought were set forth in the statement required to ground application for judicial review, which statement was verified by the affidavit of the applicant sworn on 16 March 1993.

The statement of grounds of opposition pursuant to O.84, r.22(4) of the Rules of the Superior Courts 1986 was filed on 8 July 1993.

Paragraph 13 of the said grounds of opposition provided that:

The proceedings herein raised issues of fact and law in respect of which it is more appropriate that this honourable court should rule thereon after plenary hearing on oral evidence. The respondents reserved their entitlement to apply to this honourable court for appropriate directions in respect of a plenary hearing herein.

On 12 July 1993 the respondents by notice of motion sought:

1. An order directing plenary hearing of the application for judicial review herein;

2. Such directions as to pleadings as to the court may seem fit.

By agreement of the parties to the proceedings the following schedule of the issues to be tried by the learned trial judge was prepared:

1. What were the applicable provisions on the appointment of the applicant as a judge of the District Court in respect of pension entitlements?

2. Is the applicant bound by his acceptance, on his appointment as a judge of the District Court on or about 1 March 1983, of the applicable provisions in respect of pension entitlements?

3. Was a decision made by the second named respondent on or about 6 January 1993 refusing to change the pension arrangements for judges of the District Court including the applicant?

4. If such a decision was made by the second named respondent, is the second named respondent empowered to change the pension arrangements for judges of the District Court including the applicant?

5. Are the statutory provisions providing for the statement of superannuation gratuities ( i.e. lump sum gratuities on retirement) as provided for under the Courts of Justice and Court Officers (Superannuation) Act 1961 (No. 16 of 1961) and, in particular, s. 2(5) thereof invalid having regard to the provisions of the Constitution of Ireland on the alleged grounds following:

(a) The said provisions are arbitrary, unreasonable and not based on any rational or actuarial premise.

(b) The said provisions violate the applicant’s constitutional right to fair procedures and to a rational system of statutory pension entitlements.

(c) The said statutory calculation provided for in the said Act is arbitrary and represents an approximate rule of thumb.

6. Is there a standard actuarial practice in relation to abatement of pensions to provide for the payment of superannuation gratuities (lump sum gratuities on retirement)?

7. If the answer to 6 is in the affirmative, what is the standard actuarial practice in relation to abatement of pensions to provide for the payment of superannuation gratuities (lump sum gratuities on retirement)?

8. Are there differences of capacity and of social function in the obligations and duties of a judge of the District Court on the one hand and judges of the Circuit, High and Supreme Court on the other hand?

9. Are the statutory provisions providing for pensions of judges of the District Court as provided for under the Courts (Supplemental Provisions) Act 1961 (No. 39 of 1961) and in particular s. 31 and the Second Schedule, Part III, and paragraph 8(2) thereof invalid having regard to the provisions of the Constitution of Ireland on the alleged grounds following:

(a) The said provisions unfairly and unconstitutionally discriminate as between judges of the Circuit Court, High Court and Supreme Court on the one hand and judges of the District Court on the other hand.

(b) The said provisions are contrary to Article 40.1 of the Constitution of in that there is no difference of capacity and of social function to justify such a legislative distinction.

It appears from the judgment of the learned trial judge that:

Essentially the applicant has two complaints. First of all he says that the statutory arrangements on foot of which the lump sum gratuity payable to district judges on retirement is calculated are irrational and arbitrary and that the Minister for Justice is constitutionally obliged to take the necessary steps to have them changed.

Secondly, he says that he is wrongly and unconstitutionally discriminated against in that Circuit Court judges are eligible for full pension after 15 years’ service whereas District Court judges must serve 20 years.

The learned trial judge held, with regard to this second ground of complaint, that the inequality in qualification for full pension as between District Court and Circuit Court judges did not amount to unfair discrimination as envisaged by the provisions of Article 40.1 of the Constitution and refused judicial review insofar as the application was based on this inequality. By notice of cross-appeal dated 9 November 1994 the applicant appealed against this decision and finding of the learned trial judge. This ground of appeal was not strenuously argued at the hearing of the appeal and I am satisfied that the learned trial judge was correct for the reasons stated by him in the course of his judgment and the applicant’s appeal on this ground should be dismissed.

The learned trial judge further held that:

1. The provisions of the Courts (Supplemental Provisions) Act 1961 and in particular s. 31 and the Second Schedule, Part III and paragraph 8(2) thereof are not invalid having regard to the provisions of the Constitution.

2. Having regard to the evidence adduced at the hearing, the statutory framework (which will be dealt with later in this judgment), at the time of its enactment was neither irrational or arbitrary.

The applicant has not appealed against either of these findings by the learned trial judge.

The learned trial judge then went on to consider whether due to changed circumstances the 1961 statutory framework for providing a retirement gratuity is now irrational and unreasonable, stating that if it was, three separate questions of law would then arise.

1. Is there a constitutional obligation on the State to provide district judges with pensions which are ‘reasonable’ in the sense of not being unreasonable or irrational rather than in some quantum meruit connotation?

2. Does the erosion in pension benefits in real terms which has occurred constitute a reduction of a judge’s remuneration contrary to Article 35.5 of the Constitution?

3. If a breach of a constitutional obligation is established is there a remedial order which the court can make, especially having regard to Somjee v. Minister for Justice [1981] ILRM 324?

On the basis of the actuarial evidence adduced at the hearing, the learned trial judge stated:

… I have concluded that as a consequence of changed circumstances, the 25% reduction in the notional two-thirds pension is, in the context of the statutory scheme, no longer rational or equitable and that the appropriate reduction for the purpose of financing the existing benefits would be 22%. Alternatively, the current position can be stated in a different way. The 25% reduction should result in a lump sum gratuity of 1.9 times the reduced pension instead of 1.5 times the reduced pension as at present. In round figures a lump sum of twice the pension rather than one and a half times the pension would now be appropriate if the rationale of the original statutory scheme were to be applied.

It is now necessary to consider the provisions of the said statutory scheme.

The learned trial judge did not hold that the provisions of s. 2 of the Courts of Justice and Court Officers (Superannuation) Act 1961 were invalid having regard to the provisions of the Constitution and the entitlement of the applicant with regard to pension and lump sum payable on retirement must be considered in the light of the provisions thereof.

It is desirable to set forth the provisions of the said s. 2 which provides that:

(1) This section applies to —

(a) a person appointed a judge of the Supreme Court, the High Court or the Circuit Court or a justice after the passing of this Act, and

(b) a person who, in accordance with the provisions of s. 3 of this Act and of regulations under s. 6 of this Act, adopts the provisions of this section.

(2) Upon the grant of a pension under the Acts to any person to whom this section applies, there shall be granted to that person a gratuity of an amount equal to one and one-half times the yearly amount of the pension (including any part thereof surrendered under s. 7 of this Act) as reduced under subs. (5) of this section.

(3) Upon the death, while holding office as a judge of the Supreme Court, the High Court or the Circuit Court or as a justice after five years’ service or upwards as a judge or justice, as the case may be, of any person to whom this section applies, there shall be granted to the legal personal representative of that person a gratuity of an amount equal to the yearly amount of his salary as a judge or justice, as the case may be, at the time of his death.

(4) If any person to whom a pension under the Acts and a gratuity under this section have been granted dies at a time when the amount paid to him on foot of the pension and the gratuity is less by any sum than the yearly amount of his salary as a judge of the Supreme Court, the High Court or the Circuit Court or as a justice, as the case may be, at the time when he ceased to hold office as such judge or justice, as the case may be, there shall be granted to the legal personal representative of that person a gratuity of an amount equal to that sum.

(5) The yearly amount payable, but for this subsection, of a pension granted under the Acts to a person to whom this section applies shall be reduced by one-fourth.

The Courts (Supplemental Provisions) Act 1961, s. 31 provides the statutory basis for the pensions payable to judges of the District Court.

(1) The provisions set out in Part III of the Second Schedule to this Act shall apply to the pensions of justices of the District Court.

The relevant portion of Part III of the Second Schedule is:

(2) There shall be granted to a justice to whom this paragraph applies and who, having reached the age of 65 years, vacates his office after 20 years’ service or upwards a pension for life of two-thirds of his remuneration at the time of such vacation of office.

(3) There shall be granted to a justice to whom this paragraph applies and who, owing to age or permanent infirmity, vacates his office after five years’ service or upwards a pension for life of one-sixth of his remuneration at the time of such vacation of office with the addition of one-thirtieth of such remuneration for every completed year of service in excess of five, subject to a maximum pension of two-thirds of such remuneration.

From a consideration of the foregoing sections, it is clear that the learned trial judge was correct in holding that the principal statutory provision for pensions for judges of the District Court is s. 31 of the Courts (Supplemental Provisions) Act 1961 and Part III, paragraph 8 of the Second Schedule to that Act, which provides that there shall be granted to a justice to whom that paragraph applied and who, having reached the age of 65 years, vacates his office after 20 years’ service or more, a pension for life of two-thirds of his remuneration at the time of vacation of office. It also provides for the appropriate pension of a judge who has not completed 20 years’ service at the date of his retirement, which will be the position of the applicant when he reaches his age of retirement on 4 February 1997.

Prior to the enactment of the Courts of Justice and Court Officers (Superannuation) Act 1961, a judge of the District Court (or any other court) was not entitled on retirement to a gratuity payable by way of a lump sum or in the case of his death while holding such office to have a gratuity paid to his or her legal personal representative.

This situation was altered by the provisions of s. 2 of the said Act. This section provided for the payment of such gratuities to whom the section applied, which category included the applicant.

Subs. (5) of the said section provided that:

The yearly amount payable, but for this subsection, of a pension granted under the Acts to a person to whom this section applies shall be reduced by one-fourth.

With regard to the provisions of the said section, the learned trial judge stated at p. 375 of his judgment that:

… I am quite satisfied that in the case of judges the clear intention of s. 2 of the Superannuation Act 1961, was to effect a reduction of the pension in order to cover both the retirement gratuity and the death gratuity.

He based this finding on his interpretation of the section and stated that:

Even without any evidence a natural reading of the enactments would lead one to assume and if the applicant had read the legislation at the time of his appointment he would have assumed that the value of the quarter reduction in the pension was intended more or less to correspond with the cost to the State of the two new benefits. This is clearly indicated by the fact that the notional two-thirds pension was still to be granted under the 1953 Act but was then to be reduced by one-fourth under the 1961 Act, that reduction being included in the section that introduced the two new benefits.

There was evidence adduced on behalf of the respondents which supported the interpretation of the section made by the learned trial judge but quite properly he did not rely on such evidence for that purpose.

The said evidence was admitted by him for the purpose of rebutting the allegation made by the applicant that the reduction was irrational and unreasonable.

This evidence clearly established that:

(i) in 1961, of the 25% reduction of pension, 10% was attributable to the death gratuity and 15% to the retirement gratuity;

(ii) the statutory scheme as originally formulated was not arrived at by arbitrary or ‘rule of thumb’ methods but, on the contrary, was based on a formula which produced a result that the capital value of the percentage reduction more or less equalled the cost to the State of the new benefits to be enjoyed by judges of the District Court;

(iii) at the time, i.e. 1961, the Irish judges were seeking similar benefits to those enjoyed by their English counterparts, who, in the early fifties were given retirement and death gratuities for the first time, which retirement gratuity was fixed at a sum equivalent to twice the retirement pension;

(iv) the granting of such benefits in Ireland would have involved a 7% additional cost to the exchequer and the State was unwilling to alter the judges’ pension arrangements except on a self-financing basis;

(v) the benefits conferred by s. 2 of the Act were financed in full by the reduction of the pension by one-quarter and in 1961 such deduction was fair and reasonable and in no way irrational or unreasonable;

(vi) the position had altered substantially by 1994;

(vii) the actuaries called on behalf of the applicant and on behalf of the respondents were agreed that of the 25% reduction in the pension payable on retirement, 9.4% of such reduction can be attributed to the death gratuity and 15.6% to the lump sum gratuity and that if this 15.6% was applied to providing such lump sum gratuity that the lump sum payable should be 1.9 times the reduced pension and not 1.5 times as presently payable.

On the basis of the foregoing facts the learned trial judge held that the applicant’s application for judicial review, in so far as it was based on the allegation that the 1961 statutory framework providing for a retirement gratuity was, from the start, irrational, must fail.

However, he held that, because of changed circumstances, the said arrangements were, at the date of the hearing in 1994, irrational and unreasonable. Being of that view, he made the declaration set forth in the order of the High Court dated 1 July 1994 which stated that:

The State in permitting a gross inequality to arise between the reduction in pension of District Court judges and the costs of the lump sum gratuities intended to be met by such reduction is in breach of its constitutional duty to secure pension rights for district judges which are not irrational or wholly inequitable.

Inherent in such declaration is a finding by the learned trial judge that a gross inequality has arisen between the reduction in pension of District Court judges and the costs of the lump sum gratuities intended to be met by such reductions; that the State is in breach of its constitutional duties in permitting such gross inequality to arise; and that there is a constitutional duty on the State to secure pension rights for district judges which are not irrational or wholly inequitable.

The learned trial judge had specifically stated in the course of his judgment that:

If there is a legislative scheme providing for a particular level of pension for district judges, but also providing for the compulsory loss of part of that pension, so as to provide other benefits such as, in this case, a lump sum gratuity and a death gratuity of equal value, then if external circumstances have the effect of removing the equality so that the benefits have a value very substantially less than the compulsory reduction from pension intended to pay for them, the State is then, in my view, in breach of its constitutional obligation to secure pension arrangements for judges which are not irrational or wholly inequitable.

The respondents, on behalf of the State, have appealed against the making of the aforesaid declaration.

Appeal
While the respondents had appealed on the ground that the learned trial judge had erred in law in granting relief by way of such declaration, which had not been sought by the applicant in his statement required to ground his application for judicial review and was not one of the issues raised in the schedule of issues to be agreed by the parties hereto to be the matters at issue between them, this ground was not strenuously pressed before this Court as it was desirable that the opinion of the court should be obtained on the serious and fundamental issues arising on this application.

The main grounds of appeal argued on behalf of the respondents were that:

(i) the learned trial judge erred in law and in fact in granting relief by way of declaration as set out in the order of the High Court when the effect of so doing was to indicate to the Oireachtas the appropriate form of legislation to be passed to rectify the anomaly which the learned trial judge found whereby the reduction in the two-thirds of pension exceeds the amount required for the lump sum gratuities;

(ii) in so doing, the learned trial judge failed to respect the separation of powers as recognised in the Constitution of Ireland;

(iii) by virtue of the provisions of Article 36 of the Constitution the matter of the pensions of judges was a matter to be regulated by law;

(iv) by virtue of the provisions of Article 15.2.1 ° the sole and exclusive power of making laws for the State is vested in the Oireachtas;

(v) the courts may not interfere with such laws enacted by the Oireachtas unless such laws are invalid having regard to the provisions of the Constitution; and that having regard to the fact that the relevant sections were not invalid having regard to the provisions of the Constitution, it is not open to this Court to interfere with such provisions;

(vi) there is no implied principle under the Constitution to the effect that the pension and gratuity provisions provided for judges by statute shall not be arbitrary and/or irrational;

(vii) even if there were such an implied principle, the learned trial judge erred in law and in fact in finding that the said provisions were, in 1994, arbitrary and unreasonable, particularly having regard to his finding that they were not such at the time of the enactment of the relevant legislation in 1961 and that the appropriate deduction from the notional pension of two-thirds of salary to cover the cost of such gratuities payable in 1994 would be 22% rather than the 25% deducted in accordance with the provisions of s. 2(5) of the Act of 1961.

While the reduction of the portion of the pension necessary to provide the death and retirement gratuities from 25% to 22% of the pension of two-thirds of salary may appear relatively insignificant, it has the effect that the continued deduction of 25% would entitle the applicant and other judges to a lump sum of 1.9 times the pension payable on retirement rather than the 1.5 times presently payable.

On the basis of the current salary payable to the applicant i.e. £49,250 the pension to which he would be entitled, having regard to his period of service as a judge of the District Court would be £22,983.22 and the lump sum payable would be £34,474.98 (exclusive of such refunds of superannuation payments as he may be entitled).

If, however, he were held to be entitled to a payment of 1.9 times the pension payable such lump sum would be £43,668.30, a difference of £9,193.32. This is not an insignificant amount. All retiring judges of the District Court are similarly affected, the amounts involved depending on their years of service as District Court judges and other factors.

The learned trial judge had held that it was the intention of the Oireachtas as expressed in the provisions of s. 2 of the Courts of Justice and Court Officers (Superannuation) Act 1961 that the purpose of the reduction of the pension payable to judges on retirement of one-fourth of the pension to which they were entitled was to finance the benefits provided for in s. 2(1) and (3) of the Act namely the payment of the retirement gratuity and the gratuity payable to the legal personal representatives of a judge if he died while holding office after five years’ service or upwards.

The evidence adduced before the learned trial judge clearly indicated that the new scheme would be self-financing and financed by the aforesaid deduction. It was never the intention that the State would derive a benefit from the said deduction.

Owing to changing circumstances, the State is benefiting substantially from the provisions of s. 2 of the said Act.

This situation has led to an injustice for the applicant and other retiring and retired judges of the District Court in that the reduction of one-fourth of their pension entitlement is not being compensated for by the payment of the retirement gratuity payable to them.

In my opinion, the fundamental issue in these proceedings and in this appeal is whether it is open to this Court to interfere with the provisions of a statute, enacted by the Oireachtas, which has not been held to be invalid having regard to the provisions of the Constitution.

In the course of my judgment in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 1; [1996] 1 ILRM 81, I stated at pp. 31/92–93 as follows:

The principle of the separation of powers is firmly entrenched in the Constitution.

FitzGerald CJ in the course of his judgment in Boland v. An Taoiseach [1974] IR 338, stated that:

Article 6 of the Constitution established beyond question the separation of the executive, legislative and judicial powers of government.

Article 15.2.1° of the Constitution provides that:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

This function of the Oireachtas is, however, subject to the provisions of Article 15.4 of the Constitution which provides that:

1. The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

2. Every Act enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

The Oireachtas is subject to the provisions of the Constitution and this limits the powers conferred on it by the Constitution.

Article 28.2 provides that:

The executive power of the State shall subject to the provisions of this Constitution be exercised by or on the authority of the government.

By virtue of the terms of Article 28.2 the exercise by the government of the executive power of the State is also subject to the provisions of the Constitution.

As stated by Walsh J in the course of his judgment in Crotty v. An Taoiseach [1987] IR 713 at p. 778:

It is not within the competence of the government, or indeed the Oireachtas to free themselves from the constraints of the Constitution …. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.

In the course of his judgment in Boland v. An Taoiseach [1974] IR 338, FitzGerald CJ at p. 362 stated:

Consequently, in my opinion, the courts have no power, either express or implied, to supervise or interfere with the exercise by government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the government of the powers and duties conferred on it by the Constitution.

In the course of his judgment in Crotty v. An Taoiseach [1987] IR 713, Finlay CJ stated, at p. 775, that:

… where an individual comes before the courts and establishes that action on the part of the executive has breached or threatens to breach one or other of his constitutional rights that the courts must intervene to protect those rights but that otherwise they cannot and should not.

These dicta clearly establish that

1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

2. If, however, the government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the government of the powers and duties conferred on it by the Constitution.

Having regard to the respect which each of the organs of government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established.

It was submitted by Mr Finnegan SC on behalf of the respondents that it is not open to the court in this case to interfere; that the pensions of judges are matters which must be regulated by law and that the sole and exclusive power of making such laws for the State is vested in the Oireachtas by Article 15.2.1° of the Constitution.

Article 15.2.1° provides that:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State.

Article 36 of the Constitution provides that:

Subject to the foregoing provisions of this Constitution relating to the courts, the following matters shall be regulated in accordance with law, that is to say:

(i) the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges,

(ii) the number of the judges of all other courts, and their terms of appointment.

In the course of his judgment in State (Walshe) v. Murphy [1981] IR 275 the then President of the High Court, Finlay P stated at p. 284 of the report as follows:

The sole and exclusive power of making laws for the State is vested in the Oireachtas by Article 15.2.1°. Prima facie, such power of legislation is absolute and all-embracing, subject to the qualifications imposed upon it by the Constitution.

He went on to say that:

The qualifications imposed upon the exercise of that power fall into two main categories. First, there is the general qualification contained in Article 15.4.1°, that the Oireachtas ‘shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof’. Secondly, there are to be found throughout the Constitution specific prohibitions against the enactment of laws with a particular effect or particular purpose.

He then proceeded to give examples with regard to such specific prohibition against the enactment of laws. He then went on to say (at pp. 285–286) that:

Further it seems to me there are to be found in the Constitution several instances where the Oireachtas is actively obliged to regulate certain matters by law; in other words, to enact statutory provisions to provide for them. One example is the obligation of the Oireachtas under Article 36.i to provide by statute for the number of judges of the Supreme Court and of the High Court, and for the remuneration, age of retirement and pensions of such judges. Another example is the example under debate in this case i.e. , the obligation of the Oireachtas to provide by statute the number of judges of all other courts and their terms of appointment. An example of the same obligation, outside the sphere of the courts or the judiciary, may be found in Article 30.6, which provides: ‘Subject to the foregoing provisions of this article, the office of Attorney General, including the remuneration to be paid to the holder of the office, shall be regulated by law.’Article 16.2.2° provides that the number of members of Dáil Éireann shall from time to time be fixed by law. Article 16.6 requires that provision shall be made by law to enable the member of Dáil Éireann who is the chairman immediately before a dissolution of Dáil Éireann to be deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuing general election. Many other examples are to be found in the Constitution. The effect of these provisions seems to me to be that the Oireachtas, while retaining a discretion as to the details of the legislation concerned and as to the precise regulations created thereby, has a constitutional obligation to make some regulations or some provisions.

Article 36 of the Constitution places a constitutional obligation on the Oireachtas to regulate:

i. the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges;

ii. the number of the judges of all other courts, and their terms of appointment.

This obligation is however expressed to be ‘subject to the foregoing provisions of the Constitution relating to the courts’.

The relevant ‘foregoing’ provisions of the Constitution to which this obligation is subject appear to me to be as follows.

Article 34.2 provides that:

The courts shall comprise Courts of First Instance and a Court of Final Appeal.

Sub-article 3.1 of this article provides that:

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.

Sub-article 3.4 provides that:

The Courts of First Instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.

By virtue of the provisions of s. 5 of the Courts (Establishment and Constitution) Act 1961 there was established, in accordance with the provisions of the Constitution, a court of first instance to be called An Chúirt Dúiche (the District Court).

The applicant is a member of this Court which was established in accordance with the Constitution by the said 1961 Act.

Consequently, he is a judge to whom the provisions of Articles 35 and 36 of the Constitution apply and is subject to the restraints imposed and rights conferred on all judges by the Constitution.

Article 35.2 provides that:

All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

Article 35.3 provides that:

No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position of emolument.

Article 35.5 provides that:

The remuneration of a judge shall not be reduced during his continuance in office.

This latter provision is of the utmost importance in the circumstances of this case.

The discretion normally enjoyed by the Oireachtas with regard to the details of legislation which they are obliged to introduce is not unfettered.

The Oireachtas is obliged to have regard to the aforesaid provisions of the Constitution and in particular those of Article 35.5 which provides that the remuneration of a judge shall not be reduced during his continuance in office.

‘Remuneration’ undoubtedly includes pension entitlements.

Blackburn J stated in R. v. Postmaster General (1876) 12 BD 658 at p. 663 that:

I think the word ‘remuneration’ means quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them.

I agree with the statement of the learned trial judge in the instant case that ‘pension is nothing more than deferred remuneration’.

The English version of Article 35.5 of the Constitution provides the remuneration of a judge shall not be reduced during his continuance in office.

The Irish version however provides that:

Ní céad laghdú a dhéanamh ar thuarastal breithimh an fad is bheidh in oifig.

The same phrase ‘ní céad laghdú a dhéanamh’ is used in Article 12.11.3° which deals with the emoluments and allowances of the President.

The English version however provides:

The emoluments and allowances of the President shall not be diminished during his term of office.

The words ‘reduced’ and ‘diminished’ in the English version of the Constitution are and must be regarded as synonymous.

As the obligation placed on the Oireachtas to regulate the matters set forth in Article 36 of the Constitution is subject to the provisions recited herein, there is a constitutional obligation on the Oireachtas in the enactment of such legislation to ensure that such legislation does not authorise or permit the reduction or diminution during their term of office of the remuneration, which includes pensions payable on retirement, of the judges appointed in accordance with the provisions of the Constitution.

This obligation is a continuing one and requires that these matters should be regulated from time to time by the Oireachtas.

In so far as the salaries of judges are concerned, this matter was regulated from time to time by the Oireachtas enacting legislation which provided for increases in such salaries.

However, s. 46 of the Courts (Supplemental Provisions) Act 1961 was amended with effect as from 1 April 1968 by the insertion after subs. 8 thereof of the following:

(9)(a) The government may, whenever they so think fit, by order increase the sums payable by way of remuneration to the several judges of the Supreme Court, the High Court and the Circuit Court and the several justices of the District Court.

(b) An order under this subsection may, if so expressed, have retrospective effect.

(c) Where an order is proposed to be made under this subsection, a draft thereof shall be laid before Dáil Éireann and, if a resolution disapproving of the draft is passed by Dáil Éireann within the next subsequent 21 days on which it has sat after the draft is laid before it, the order shall not be made.

The effect of this amendment is to enable the government, rather than the legislature by order to increase the sums payable by way of remuneration to the judges of the courts established in accordance with the provisions of the Constitution, subject of course to the requirement to place the draft order proposed to be made before Dáil Éireann which would be entitled within the time specified in the subsection to pass a resolution disapproving of the draft, in which event, the order would not be made.

The matter of pensions payable to judges on their retirement however has not been regulated since 1961.

As illustrated in the course of this judgment, the pension of two-thirds of their salary at the date of their retirement was reduced by one-quarter.

The purpose of such reduction was to pay for the additional benefits conferred by s. 2(3) and (4) of the Courts of Justice and Court Officers (Superannuation) Act 1961 and the judges affected thereby did not suffer any reduction or diminution of the pensions thereby because at that time such deduction was compensated for by the additional benefits to which they became entitled thereby, viz. the lump sum gratuity payable on their retirement and the death benefit, which additional benefits were paid for by the judges themselves by the reduction of one-quarter of their pension entitlement.

It appears from the evidence in this case, that this situation has changed radically since 1961 and that the deduction of one-quarter from the pension to which judges are entitled is adequate to provide a lump sum on retirement of 1.9 times the pension payable to judges on retirement rather than 1.5 times as provided for by law.

Either the deduction of 25% when a deduction of 22% would be sufficient for the purpose or the failure to pay a gratuity of 1.9 times the pension, amounts to a reduction or diminution of the pension entitlement of the applicant.

This situation requires to be remedied by the Oireachtas in accordance with the provisions of Articles 35 and 36 of the Constitution because the present situation has led to an unjust and inequitable result whereby the applicant has suffered loss whether by way of excessive reduction in his pension or the payment of an inadequate lump sum by way of gratuity.

The manner in which this situation is remedied is a matter for the Oireachtas and it is not open to this Court to interfere with the manner in which this situation is dealt with by the Oireachtas unless the Oireachtas fails to have regard to its constitutional obligations in this regard and this Court must assume at this stage that the Oireachtas will have regard to such obligations.

I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of government, the legislature, the government and the judiciary have traditionally shown to each other, I am satisfied that once the government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with law and in accordance with its constitutional obligations.

I cannot subscribe to the declaration made by the learned trial judge. In the first instance, I am not satisfied that the inequality referred to in the declaration can reasonably be described as gross. Neither am I satisfied that the pension scheme for judges of the District Court can properly be described as irrational or wholly inequitable.

It is accepted by the applicant that the pension scheme as provided for in the 1961 legislation was neither irrational or wholly inequitable when first introduced.

What has happened is that this scheme is no longer achieving precisely what it was intended to do, viz. to replace a portion of the judicial pension with an equivalent in lump sum gratuities because of changing circumstances.

Such fact does not render the scheme irrational or wholly inequitable but has created a situation which now requires to be regulated for by the Oireachtas for the reasons set forth in this judgment.

Consequently, I would allow the respondents’ appeal against the making of the aforesaid declaration.

O’FLAHERTY J

(Barrington J concurring) The dilemma that confronts the court in this case may be thus presented: in 1961 the judges of the District Court were entitled to receive on retirement two-thirds of their salaries as pension for life. At that time, in return for a death benefit and gratuity, payable on retirement, they agreed to accept their pension less a quarter. The scheme as actuarially devised in 1961 was meant to be, and was in fact, self-financing. In other words, the government at the time was willing to promote this change in the legislation provided it did not cost the exchequer anything. The paradox that this case throws up is that, because of the events that have happened in the intervening years the exchequer will make a ‘profit’ in the case of the present applicant of about £9,000; in the case of some of his colleagues, we were told, it may represent as much as £20,000 in particular cases.

It is unnecessary for me to do other than to refer to the illustration of the point at issue by reference to the relevant figures contained in the judgment of the Chief Justice.

The constitutional validity of the legislation in question is not challenged. This is not surprising because that challenge, if successful, would give the result that the relevant pension arrangements would all be discarded. So that we have a meromictic situation: a provision in legislation not assailed as itself unconstitutional ultimately produces an unjust result. Can this Court provide a remedy in these circumstances? Ubi jus, ibi remedium ?

The District Court
In the first instance, I think it is worth spending some time to outline the importance of the District Court in our judicial system. This is because people in general may not be aware of the extent and importance of the work that it carries out. The precursor of the District Court is well chronicled by former District Judge Mary Kotsonouris in her book Retreat From Revolution (Irish Academic Press, 1994). It came to pass that the jurisdiction exercised by the District Court in 1961 had expanded greatly from that exercised by the District Court that had been established by the Courts of Justice Act 1924, and, in turn, the court today represents a transformation from the jurisdiction that the court exercised either in 1924 or 1961 in the scope, volume and importance of the issues with which it has to deal. The District Court is the fulcrum of our Judicial system: it is the court which is most familiar to the majority of litigants.

The evolution of the court’s jurisdiction to try summary and indictable offences has been described by O’Higgins CJ in his judgment in McEvitt v. Delap [1981] IR 125 at pp. 129–130. The Courts of Justice Act 1924, granted a very limited jurisdiction to the District Court to try indictable offences (with the consent of the accused) and subject to a maximum sentence of six months: larceny, receiving, embezzlement or false pretences, where the property involved did not exceed £20; also assault occasioning actual bodily harm, indecent assault, burglary, riot, unlawful assembly, malicious damage to property less than £20.

The next major development was brought about by the Criminal Justice Act 1951. S. 4 increased the maximum sentence that the District Court could impose to twelve months. S. 5 allowed for the imposition of consecutive sentences, so long however as the aggregate term did not exceed twelve months. S. 2 expanded the list of indictable offences triable summarily to include the 21 indictable offences listed in the first schedule thereto. S. 19 of the Criminal Procedure Act 1967 amended the 1951 schedule, principally by including all of the provisions of the Larceny Act 1916.

S. 12 of the Criminal Justice Act 1984, increased the aggregate term of imprisonment that the court could impose to two years. S. 17 increased the maximum fine that the court could impose from £100 (fixed by the 1951 and 1967 Acts) to £1,000.

The Criminal Justice (Public Order) Act 1994, created 20 new offences of which 13 are triable summarily, two are triable on indictment and five may be tried either summarily or on indictment. In only one of this last category is the accused given a right of election.

As regards civil jurisdiction, s. 4(c) of the Courts Act 1991, provides that the District Court shall enjoy an unlimited jurisdiction as to the monetary value of all civil claims where the parties to a civil claim so agree in writing. Ss. 4 to 8 of the Act doubled the jurisdiction otherwise exercised from £2,500 to £5,000. Of course, the findings of the District Court on proportions of liability is often binding as between the same parties throughout the courts system: see Part III of the Civil Liability Act 1961.

It is in the area of family law that the work of the District Court has expanded to the most dramatic extent. The court now has unlimited jurisdiction in guardianship of infants cases, a significant jurisdiction in maintenance and a greatly expanded jurisdiction in barring orders. Until 25 years or so ago, guardianship was the exclusive preserve of the High Court. In maintenance, the judges of the District Court can grant £200 per week for the spouse and £60 for each dependent child. There is also a greatly expanded jurisdiction under the Family Law (Protection of Spouses and Children) Act 1981, as well as under the Domestic Violence Act 1996. This is a jurisdiction which is set to expand much further when certain legislative proposals at present in the pipeline are enacted.

Constitutional provisions
Article 35.2 provides:

All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

Article 35.3 states:

No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other position of emolument.

It is clear that this latter provision effectively ties a judge exclusively to such financial provision as is made by the State.

Although Article 35.4 refers specifically only to judges of the Supreme Court and the High Court, the same procedure for removing a judge from office would have to be followed in the case of a judge of the District Court as they are declared to ‘hold office by the same tenure as the judges of the Supreme Court and the High Court’ by virtue of s. 20 of the Courts of Justice (District Court) Act 1946.

Article 35.5 provides:

The remuneration of a judge shall not be reduced ( diminished in translation from the Irish) during his continuance in office.

Article 36 provides that subject to the foregoing provisions of this Constitution relating to the courts , the following matters shall be regulated in accordance with law, that is to say:

i. the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges,

ii. the number of the judges of all other courts, and their terms of appointment, and

iii. the constitution and organisation of the said courts, the distribution of jurisdiction and business among the said courts and judges, and all matters of procedure.

While counsel for the respondents advanced a rather faint argument that there was a difference as regards courts other than the Supreme Court and High Courts because of the failure to mention ‘remuneration’ and ‘pensions’ in paragraph ii, I think the reality is that this is a distinction without a difference. Pension entitlements nowadays are regarded as part of remuneration, must form part of a judge’s ‘term of appointment’ and are relevant to the constitutional protection afforded to safeguard the independence of the judges.

What emerges from the concept of judicial independence?
I set the background by quoting from the judgment of Lavery J in O’Byrne v. Minister for Finance [1959] IR 1 at p. 40:

One idea emerges — that the judicial power of the State should be vested in judges set apart in many important ways from the life of the community and denied important civil rights in order that they should be independent in the exercise of their functions.

Apart from specific prohibitions barring a judge from participating in the ordinary activities of a citizen, judges have to recognise many limitations both in their public and private lives ….

What forces might be anticipated as likely to threaten judicial independence? Apart from violence, which may be left out of account as violence would threaten, not the judicial power only, but also the existence of the State, the danger of interference with independence is obviously from the executive and legislative organs of government. History — not only our own — but all history teaches that such a danger can be very real.

As the independence is declared, it is to be expected that it would be secured and protected. As has been said, the judicial power is the weakest of the three organs of government, as it holds neither the sword nor the purse.

It is clear, in my judgment, that Articles 35 and 36 contemplated, inter alia, a judiciary which would remain independent of the other branches of government. Financial independence is arguably a key component of judicial independence generally. I agree with the conclusion reached by the learned trial judge in the present case, when he said:

I think that it is implicit in the Constitution that judges must receive salaries and pension benefits quite apart from any recruitment considerations. Otherwise, the essential independence of the judges would be undermined. It seems obvious that that constitutional obligation could not be discharged by conferring on judges salaries or pension arrangements which were irrational or wholly inequitable. If, for instance, a salary for a district judge as fixed by statute became so eroded in real terms by reason of inflation that having regard to salary movements in the community generally it was totally out of line and so low as to undermine the secure independence of the judiciary there would be a breach of the constitutional obligation. As pension is nothing more then deferred remuneration the same principle would apply to pension rights.

The trial judge decided that there had not been a breach of Article 35.5. I am inclined to disagree with the judge’s finding on this front. The misapplication (as I hold it is) of the money in question indubitably represents a diminution in the judge’s remuneration. The only question is whether since it occurs as he leaves office is the diminution operative during his ‘continuance in office’? I believe that the diminution is effectively taking place during his continuance in office, though the result of that diminution does not crystallise until he actually leaves office.

Remedy
It is clearly beyond debate that the State, far from rewarding the district judges for their increased workload over the years, and far from giving effect to the spirit of the legislation as it was originally enacted, would rather now seek to take cash meant for his gratuity from a district judge whose contributions have gone to provide for such gratuity (unlike the public service generally). Is this something that we, as the Supreme Court, should countenance?

It is important to put to one side the complaint one often hears about the general inequity of the tax system. Nearly every area of the tax code at some time throws up anomalies, inequities, and often rank injustices. Obviously how such might be dealt with in a particular case is not for debate now, but what we are concerned with is a fund that is in fact established in a discernible fashion and which should be, but is not, applied in total for the purpose for which it was set up.

Counsel for the appellants submitted that the High Court decision in Somjee v. Attorney General [1981] ILRM 324 might advance their case. The learned High Court judge in that case stated:

The jurisdiction of this Court in a case where the validity of an Act of the Oireachtas is questioned because of its alleged invalidity having regard to the provisions of the Constitution is limited to declaring the Act in question to be invalid, if that indeed be the case. The court has no jurisdiction to substitute for the impugned enactment a form of enactment which it considers desirable or to indicate to the Oireachtas the appropriate form of enactment which should be substituted for the impugned enactment.

The point of difference with the present case will be immediately apparent; there is not sought here a declaration that the Act is invalid because of any unconstitutional infirmity. In any event, the legislative provision sought to be impugned in the Somjee case has now been overtaken by legislative enactment (cf. s. 3 of the Irish Nationality and Citizens Act 1986).

It is, of course, an elementary constitutional proposition that only the Oireachtas has the sole and exclusive power of making laws for the State. But, as is clear from the judgment of the divisional court in the State (Walshe) v. Murphy [1981] IR 275, this statement alone does not conclude the matter. In the first instance, Finlay P (for the court) pointed out that there is a general qualification contained in Article 15.4.1° that the Oireachtas ‘shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof’. Secondly, there are to be found throughout the Constitution specific prohibitions against the enactment of laws with a particular effect or particular purpose and he gives some examples of those.

He then details a category of prohibition arising from specific rights or inhibitions contained in the Constitution and gives as an example that the remuneration of a judge ‘shall not be reduced during his continuance in office’.

I come then to the passage that is apposite for our present purposes and it is as follows (at pp. 285–286):

Further, it seems to me there are to be found in the Constitution several instances where the Oireachtas is actively obliged to regulate certain matters by law in other words, to enact statutory provisions to provide for them. One example is the obligation of the Oireachtas under Article 36.i to provide by statute for the number of the judges of the Supreme Court and of the High Court, and for the remuneration, age of retirement and pensions of such judges. Another example is the example under debate in this case, i.e. the obligation of the Oireachtas to provide by statute the number of judges of all other courts and their terms of appointment. An example of the same obligation, outside the sphere of the courts or the judiciary, may be found in Article 30.6 which provides: ‘Subject to the foregoing provisions of this article, the office of the Attorney General, including the remuneration to be paid to the holder of the office, shall be regulated by law.’Article 16.2.2° provides that the number of members of Dáil Éireann shall from time to time be fixed by law. Article 16.6 requires that provision shall be made by law to enable the member of Dáil Éireann who is the chairman immediately before a dissolution of Dáil Éireann to be deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuing general election. Many other examples are to be found in the Constitution. The effect of these provisions seems to me to be that the Oireachtas, while retaining a discretion as to the details of the legislation concerned and as to the precise regulations created thereby, has a constitutional obligation to make some regulations or some provisions.

Then there is the fifth category of the legislative powers of the Oireachtas which seems to me to consist of all other areas or topics or matters in respect of which legislation might be enacted and in which, subject to the overall obligation not to enact a statute repugnant to the Constitution and subject to the other specific prohibitions against the enactment of laws having a particular effect or consequence, the Oireachtas may enact legislation.

For resolution
The matter calling for resolution is as follows: Is the independence of the judiciary adequately secured when a judge is deprived of a sizeable share of a gratuity which he has by his contributions built up and to which it is agreed on all sides he should be entitled, except for the intervening fact of legislation which is accepted to be constitutional? I appreciate we do well when dealing with judicial colleagues to preserve a certain Caesarean detachment: ‘ what touches us ourselves should be last serv’d ’ ( Shakespeare, Julius Caesar , Act III, Sc. 1). Nonetheless, judges of the District Court are entitled to the same measure of justice as anyone else in the land who appears in this Court: no more and no less, and for these present purposes I can return to the basic statement of Ó Dálaigh CJ in State (Quinn) v. Ryan [1965] IR 70 at p. 122 in a passage that has resonated down the years:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.

We are indubitably concerned with a bedrock constitutional concept in this case, viz. the independence of the judiciary which is being eroded by a reduction in its monetary entitlements.

To that statement of Ó Dálaigh CJ, it is worthwhile, I believe, to add the comments of Finlay CJ in State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550; [1985] ILRM 465 at pp. 573/484, when he said:

The courts have not only an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights; (ii) if the invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded; and (iii) to ensure as far as possible that persons acting on behalf of the executive who consciously and deliberately violate the constitutional rights of citizens do not for themselves or their superiors obtain the planned results of that invasion.

The learned Chief Justice went on to say that this principle of our law has an application beyond the mere question of the admissibility of evidence or to the question of punishment of persons for contempt of court by unconstitutional actions.

During these proceedings the actuarial evidence has revealed the unacceptable disparity between the present arrangements and a salary and pension arrangements which would satisfy the relevant constitutional duty of the State.

While it is accepted on all sides, as it must be, that the judicial arm must be the ultimate arbiter as to whether the Constitution has been breached and the appropriate remedy for such a breach must as occasion requires be devised by this Court (see judgment of Budd J in Byrne v. Ireland [1972] IR 241 at pp. 305–307 and cases cited therein), nonetheless, it needs to be emphasised, too, that the obligation to observe the Constitution reposes equally with the other branches of power in the State, the Oireachtas and the government.

The solution proposed by the Chief Justice ideally balances an identification of the injustice that this case has illuminated with a preservation of the essential harmony that is required for the operation of the separation of powers. I join with particular emphasis on this aspect of his judgment that this is the correct course for the court to adopt at this stage and to stop short of making any declaration.

It is understandable, I think, that those with the responsibility of taking decisions at the highest level in relation to the problem thrown up by this litigation would postpone taking such a decision until this Court has rendered an opinion. That has now been done and the time for decision has arrived.

BLAYNEY J

(Denham and Barrington JJ concurring): The applicant, who is the respondent in this appeal, is a judge of the District Court. He is the secretary of the Association of District Judges and brings these proceedings on his own behalf and on behalf of the association. The main object of the proceedings is to challenge part of the provisions made by statute for district judges on retirement. As the judges of all the other courts are equally affected by the same provisions, the case is of importance to all the members of the judiciary.

The applicant was appointed a judge of the District Court on 1 March 1983. He is due to retire on 4 February 1997 when he will have reached the age of 70. The proceedings are principally concerned with the amount of the gratuity to which he will be entitled on retirement.

Prior to the passing of the Courts of Justice and Courts Officers (Superannuation) Act 1961 the members of the judiciary were not entitled to any gratuity on retirement. The Courts of Justice Act 1953, and previous Courts of Justice Acts had provided in regard to district judges that there should be granted to a justice ‘who, having reached the age of 65 years, retires after 20 years’ service or upwards, a pension for life of two-thirds of his remuneration at the time of his retirement’.

The section in the 1953 Act which had contained this provision was repealed by the Courts (Supplemental Provisions) Act 1961 but was re-enacted by s. 31 of that Act taken in conjunction with paragraph 8 of the Second Schedule. The payment of a gratuity was introduced by s. 2 of the Courts of Justice and Court Officers (Superannuation) Act 1961 which provides as follows:

2

(1) This section applies to—

(a) a person appointed a judge of the Supreme Court, the High Court, or the Circuit Court or a justice after the passing of this Act, and

(b) a person who, in accordance with the provisions of s. 3 of this Act and of regulations under s. 6 of this Act, adopts the provisions of this section.

(2) Upon the grant of a pension under the Acts to any person to whom this section applies, there shall be granted to that person a gratuity of an amount equal to one and one-half times the yearly amount of the pension (including any part thereof surrendered under s. 7 of this Act) as reduced under subs. (5) of this section.

(3) Upon the death, while holding office as a judge of the Supreme Court, the High Court or the Circuit Court or as a justice after five years’ service or upwards as a judge or justice, as the case may be, of any person to whom this section applies, there shall be granted to the legal personal representative of that person a gratuity of an amount equal to the yearly amount of his salary as a judge or justice, as the case may be, at the time of his death.

(4) If any person to whom a pension under the Acts and a gratuity under this section have been granted dies at a time when the amount paid to him on foot of the pension and the gratuity is less by any sum than the yearly amount of his salary as a judge of the Supreme Court, the High Court or the Circuit Court or as a justice, as the case may be, at the time when he ceased to hold office as such judge or justice, as the case may be, there shall be granted to the legal personal representative of that person a gratuity of an amount equal to that sum.

(5) The yearly amount payable, but for this subsection, of a pension granted under the Acts to a person to whom this section applies shall be reduced by one-fourth.

This section made two changes in the previous provisions:

1. It reduced by a quarter the pension of all members of the judiciary appointed after the passing of the Act.

2. It made provision for the granting of a gratuity on retirement and a gratuity on death while holding office.

The Association of District Judges became concerned about the amount of the gratuity which they considered no longer represented the capital amount which was appropriate to compensate for the loss of one quarter of the pension and they obtained the opinion of an actuary who advised them that the gratuity should be 1.9 times the amount of the pension rather than 1½ times as provided in the 1961 Act. In November 1992 a letter was written to the Minister for Justice by the solicitors for the Association of District Judges claiming that the statutory regime in regard to the pension and superannuation benefits of the district judges was anomalous, discriminatory and unfair and asking that it be changed. This did not result in any action by the minister and these proceedings were then instituted seeking leave to apply by way of judicial review for:

(A) An order of certiorari quashing a decision of the Minister for Justice (‘the minister’) dated in or about 6 January 1993 as refused to change the pension arrangements for judges of the District Court, including the applicant.

(B) A declaration that s. 2(5) of the Courts of Justice and Court Officers (Superannuation) Act 1961 and paragraph 8(2) of Part III of the Second Schedule of the Courts (Supplemental Provisions) Act 1961 are unconstitutional and of no effect.

(C) Further and other relief.

(D) Costs.

Leave to apply for this relief was granted by Keane J on 19 April 1993 and the matter came on for oral hearing before Geoghegan J on 3 and 8 March and 10 June 1994. While the relief claimed was as I have indicated, it appears from the judgment of the learned trial judge that the hearing before him was concerned with just two issues which he described as follows at the beginning of his judgment:

Essentially the applicant has two complaints. First of all he says that the statutory arrangements on foot of which the lump sum gratuity payable to district judges on retirement is calculated are irrational and arbitrary and that the Minister for Justice is constitutionally obliged to take the necessary steps to have them changed.

Secondly, he says that he is wrongly and unconstitutionally discriminated against in that Circuit Court judges are eligible for full pension after 15 years whereas District Court judges must serve 20 years.

The learned trial judge rejected both complaints and refused the relief sought by the applicant by way of judicial review but he granted the applicant a declaration in the following terms:

The court doth declare that the State in permitting a gross inequality to arise between the reduction in pension of District Court judges and the costs of the lump sum gratuities intended to be met by such reduction is in breach of its constitutional duty to secure pension rights for district judges which are not irrational or wholly inequitable.

The State has appealed against this declaration. The applicant has not appealed against the refusal of the relief he had sought but in a notice of cross-appeal he has appealed against the failure of the learned trial judge to hold ‘that the existing statutory pension arrangements constitute an unfair discrimination against judges of the District Court (including the applicant) contrary to Article 40.1 of the Constitution’. He also claims to be entitled to the entirety of the costs (including reserved costs) of the hearing in the High Court.

There are, accordingly, two main issues before the court on this appeal. Firstly, whether the learned trial judge was correct in making the declaration which he did, and secondly, whether the existing statutory pension arrangements constitute an unfair discrimination against judges of the District Court. I will deal with each of them in turn.

The facts on which the declaration made by the learned trial judge is based may be briefly summarised. The learned trial judge accepted the evidence of Mr Downey, the actuary called by the State, that in 1961, 15% of the 25% pension reduction was attributable to the retirement gratuity, and 10% to the death gratuity. He said that 15% was the equivalent of a multiplier of 7.6 being applied to each £1,000 of pension lost by the reduction, and that such a multiplier was quite appropriate in 1961 having regard to the mortality table then in common use and to the rates of interest then prevailing. However, his evidence was that this was no longer the position in 1994, and that was also the evidence of Mr Segrave Daly, the actuary called by the applicant. Both of the actuaries agreed that in 1994 9.4% of the 25% pension reduction can be attributed to the death gratuity, and that, if the remaining 15.6% is applied towards providing the retirement gratuity that gratuity should be 1.9 times the reduced pension instead of one and a half times as provided by s. 2(2) of the 1961 Act.

This evidence was accepted by the learned trial judge and on the basis of it he made the declaration which is the subject of this appeal. There is accordingly a finding of primary fact that in 1994, for the retirement gratuity and death gratuity to equate to the 25% pension reduction, the retirement gratuity should have been 1.9 times the reduced pension. The inference in the declaration is that by reason of this there is now a gross inequality between the 25% reduction in pension and the cost of providing the retirement and death gratuities, so it is necessary to consider whether this is a correct inference to draw. In addition, the declaration proceeds on the basis that the State has a constitutional obligation to secure pension rights for judges which are not irrational or wholly inequitable, so the question is raised as to whether the State has such an obligation and, if so, whether the present pension rights of District Court judges are irrational or wholly inequitable.

The learned trial judge expressed the constitutional duty as follows at p. 14 of his judgment:

… It would seem to me that there is a constitutional obligation to secure pension rights for judges which are not irrational or wholly inequitable.

I do not think that any obligation in this precise form can be derived from the Constitution. The only reference to judges’ pensions in the Constitution is in Article 36, the relevant part of which is as follows:

36. Subject to the foregoing provisions of this Constitution relating to the courts, the following matters shall be regulated in accordance with law, that is to say:

i. the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges,

ii. the number of the judges of all other courts, and their terms of appointment ….

It was submitted by Mr Finnegan SC on behalf of the State that this article makes a distinction between Supreme Court and High Court judges on the one hand and Circuit Court and District Court judges on the other, since there is no mention of pensions in regard to the latter, and that by reason of this District Court judges had no constitutional right to a pension. This contention was not included in the statement of opposition and it is not necessary to express any opinion on it. I am satisfied that no obligation of the nature described by the learned trial judge could be said to rest on the State. The duty imposed on the State is to regulate judges’ pensions in accordance with law and this has been done in the Courts (Supplemental Provisions) Act 1961 and the Courts of Justice and Courts Officers (Superannuation) Act 1961. Furthermore, Mr MacMenamin SC acting on behalf of the applicant, acknowledged that the latter Act, the constitutionality of which was challenged initially in these proceedings, is not unconstitutional.

Apart from this, I am unable to conclude that the current pension arrangements are irrational. The learned trial judge held that when enacted they were not irrational, and while there are undoubtedly ample grounds for saying that they need now to be amended this is not because of any irrationality but because of altered circumstances which have affected their operation.

On the question of whether the current pension arrangements are ‘wholly inequitable’ the applicant is on stronger ground. The learned trial judge held that ‘in the case of judges the clear intention of s. 2 of the Superannuation Act 1961 was to effect a reduction of the pension to cover both the retirement gratuity and the death gratuity’, and there was no appeal against that finding. In other words, there was supposed to be equality between the value of the quarter reduction in the pension and the costs of the two gratuities. That equality no longer exists. In order to compensate for the reduction in the pension the retirement gratuity ought to be 1.9 times the reduced pension, instead of 1.5 times. This means that in order to restore equality, the gratuity should be increased by four-tenths of the reduced pension. Or, to put it in another way, a retired District Court judge is getting a gratuity which is less by this amount than what it should be. Is this wholly inequitable? It may be or it may not be, but it is clearly unjust. What effect this conclusion may have, I shall consider later. For the reasons I have given I would allow the State’s appeal against the declaration made by the learned trial judge.

The second issue may be dealt with very briefly. I am in complete agreement with the conclusion reached by the learned trial judge. I am not satisfied that the mere fact that there is a different qualification period for full pension as between District Court judges on the one hand and Circuit Court judges on the other amounts to unfair discrimination. For one thing the retiring ages of the two classes of judges are different though of course district judges may be continued in office up to the retiring age fixed for Circuit Court judges. For another the evidence in the court below shows that District Court judges were usually appointed at a younger age. To make out a case for unfair discrimination one must be sure that one is comparing like with like. As Ó Dálaigh CJ said in State (Hartley) v. Governor of Mountjoy Prison Supreme Court 1967 No. 136, 21 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.

I would accordingly dismiss the cross-appeal of the applicant.

The final question to be considered is whether, having come to the conclusion that the current position in regard to the retirement gratuity is unjust, it is possible for the court to give the applicant any relief in these proceedings. Having regard to the form of the proceedings and the nature of the relief sought, it seems to me that it is not. For the court to do so would be to step well outside the framework in which the case was presented and argued.

In Cafolla v. Attorney General [1985] IR 486 Costello J cited the following passage from the judgment of Finlay CJ in Brennan v. Attorney General [1984] ILRM 355 at p. 365:

The evidence and the facts as found by the learned trial judge was that the use of the 1852 valuations was continued as a basis for agricultural rates, long after their lack of uniformity, inconsistencies and anomalies had been established and, long after methods of agricultural production had drastically changed. This in itself was an unjust attack on the property rights of those who like the plaintiffs found themselves with poor land paying more than their neighbours with better land. When this injustice had become obvious the State had a duty to take action in protection of the rights involved. This it failed to do. In continuing by means of s. 11 of the Local Government Act 1946 the same system without revision or review the State again, in the opinion of the court failed to protect the property rights of those adversely affected by the system from unjust attack.

Costello J then went on to say (p. 492):

When injustice has been established a concomitant duty requiring the State to remedy it arises, as the quotation I have just given recognises. The failure to amend or repeal a statute presently operating unjustly may result from a deliberate (but constitutionally wrong) decision of the Oireachtas, or from a deliberate (but constitutionally wrong) act of some branch of the executive, or it may have merely been the product of administrative lethargy. But it seems to me that the court’s task is to see whether the impugned legislation is operating in an unconstitutional way and it is not called upon to ascertain why it has remained unrepealed or unamended.

It seems to me that this passage can be applied to the facts of this case but, for the reasons stated earlier, it is not in my opinion possible to give any relief based on it but, even if it could be done, it is probably not necessary that it should be as it is clear that the situation should be remedied and hopefully, all that is required, is that this should be pointed out.

I would allow the appeal by the State and dismiss the cross-appeal of the applicant.

Gorman v. Minister for the Environment and Local Government

[2001] 2 I.R. 414
Judgment of Mr Justice Kelly delivered the 7th day of December 2000

1. The applicants seek the leave of this Court to commence judicial review proceedings against the respondents.

2. The application was made on an ex parte basis late on Tuesday the 28th of November 2000. At the conclusion of that hearing I took the view that I ought not to decide the application without giving the respondents an opportunity to be heard. They were served with the papers and over the last few days an inter partes hearing has been conducted before me.

3. This procedure of adjourning an ex parte application to an inter partes hearing is one which is utilised in a small number of judicial review cases. Nobody has suggested that this was not an appropriate case in which to have adopted this procedure. Although the practice

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has been followed in a number of cases in this jurisdiction it has not been the subject of any judicial comment. It has however received the approval of the Court of Appeal in England (see the observations of Lord Donaldson M.R. in R. v Legal Aid Board Ex parte Hughes (1993) 5Adm. L.R. 623).

4. At the commencement of this inter partes hearing Counsel on both sides agreed that, notwithstanding that the hearing was inter partes, the burden of proof to be achieved by the Applicants was that set forth by the Supreme Court in G. v DPP [1994] 1 I. R. 374.

5. In that case Lavan J. in this Court refused leave to reply for judicial review on an ex parte application. An appeal was taken to the Supreme Court where his decision was reversed.

6. Finlay C.J. at pages 3 77-8 of the report said:

“It is, I am satisfied desirable before considering the specified issues in this case to set out in short form what appears to be the necessary ingredients which an Applicant must satisfied in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-

(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.

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(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21(1), or that the Court is satisfied that there is a good reason for extending the time limit

(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.

These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application.”

7. It is to be noted that he specified that an arguable case in law must be made by an applicant seeking judicial review.

8. In her judgment, Denham J. said at page 381 as follows:-

“The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts 0. 84 r. 20 is light. The applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a judge of the High Court as a judicial screening

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process, a preliminary hearing to determine if the applicant has such a stateable case.”

9. It is clear that all of these dicta were made in the context of an ex parte application. When, towards the end of his submissions and having regard to them, I asked Mr O’Higgins S.C. if he continued to be of the view that this standard of proof as enunciated in G. v Director of Public Prosecutions was the appropriate one here he suggested that that might not be so and referred me to two English decisions to which I will turn in a moment. At that stage of the hearing it was however too late to allow debate on this important topic since to do so would have worked injustice given the agreement at the commencement of the case as to the applicability of the G v DPP test and the fact that Mr Rogers had proceeded to open his case fully on that basis. Had this issue as to the standard of proof been raised at the outset it could have been dealt with then. As it was not I must proceed to decide the issue in this case on the standard of proof set forth in G. v DPP .

10. I am, however, by no means convinced that this low standard is appropriate on an inter partes hearing. In this regard I think there is much to be said in favour of the views of Glidewell L.J. in Mass Energy Limited v Birmingham City Council [1994] Env. L.R. 298 . At pp. 307-8 the Lord Justice said:-

“First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted it is unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us…. Thirdly, as I have already said, we have most, if not all of the documents in front of us; we have gone through the relevant ones in detail – indeed in really quite minute detail in

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some instances – in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.

For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be – and the approach I intend to adopt will be – that we should grant leave only if we are satisfied that Mass Energy’s case is not merely arguable but is strong, that is to say, is likely to succeed.”

11. That view was approved of by Keene J. in R. v Cotswold District Council Ex Parte Barrington Parish Council 75 P. and C.R. 515. At p. 530, he said:

“Before dealing with those issues, it is necessary to consider the proper test to be applied to the substantive merits on an application for leave in a case such as this. Reference has been made by the respondents to the Court of Appeal decision in Mass Energy Limited v Birmingham City Council . There Glidewell LJ stated that, where there has been detailed evidence and substantial argument on an inter partes hearing, leave should not be granted merely because an arguable point has been shown, but only if the applicant shows a strong case which was likely to succeed. see page 308. As I indicated in ex p. Frost , that approach seems in principle to be as applicable at first instance hearing of a leave application as in renewed leave proceedings before the Court of Appeal.. ..For my part, I would prefer to put it on the basis that where the court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the court is in a better

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position to judge the merits than is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to be given leave.”

12. That approach appears to me to make a great deal of sense and to make for a more economical use of court time than the application of the substantially lower standard of arguable case to a hearing of this sort. This question must however wait to be decided on another day and in another case where the issue can be fully debated.

13. I now turn to consider this application. I do so on the basis that all the applicants must do is satisfy me that they have met the G v DPP test.

14. The principal relief which the applicants wish to obtain if they are permitted to commence proceedings is an Order of Certiorari quashing the recently made Statutory Instrument 367 of 2000. A variety of different grounds are advanced in support of the alleged entitlement of the applicants. I will consider them shortly.

15. Statutory Instrument 367/2000 was promulgated on the 21st November 2000 shortly after Roderick Murphy J. quashed an earlier Statutory Instrument No. 3 of 2000.

16. The first and third applicants in this application were respondents in that case. They, unlike the other unsuccessful respondents, have appealed to the Supreme Court and that appeal awaits a determination in that Court.

17. Statutory Instrument 367/2000 has revoked Statutory Instrument 3 of 2000 in its entirety notwithstanding that Statutory Instrument 3 had been quashed on certiorari. Mr Rogers S.C. says that this has improperly interfered with his clients’ entitlement to have their appeal disposed of because there is nothing left to be dealt with by the Supreme Court. He says that this is an impermissible interference with the judicial power and cites in aid of this

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proposition the well known case of Buckley v Attorney General [1950] IR 67 also known as the “Sinn Féin Funds” case.

18. The argument that the making of this Statutory Instrument is an interference with the applicants’ rights to have their appeal disposed of in the Supreme Court is strongly contested by Mr O’Higgins S.C. He says that the Buckley case does no more than outlaw legislation which trespasses upon the function of the court by directing or purporting to direct the courts as to how a case before them should be decided. He cites Re Camillo [1988] IR 104 in which issues similar to those raised here fell to be decided. There the Supreme Court distinguished the Buckley case on the basis that whilst in Buckley there was a direct intervention by the legislature in an action before the court, that was quite different to a measure of general application which did not purport to direct the court as to how any particular proceedings should be decided. This, says Mr O’Higgins, is a powerful argument against the proposition advanced by the applicants. It may very well be but it does not result in my being able to say that the applicants’ claim under this heading is unarguable. Arguability is the only test that must be satisfied here.

19. Three other arguments are made in support of the proposition that the Statutory Instrument should be quashed. They are (a) that it constitutes an unlawful interference with the property rights of the applicants. (b) that it is unreasonable or irrational and (c) that it was made without sufficient compliance with the rules of natural justice.

20. I intend no discourtesy to the arguments of Counsel by not dealing in detail with the submissions made to me in respect of each of these propositions. The reason I do not do so is because, notwithstanding the strong submissions made, I cannot hold that the propositions put forward by the applicants are not arguable. Having taken into account all of what has been said to me I have come to the conclusion that an arguable case has been made out under each

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of the headings identified. Having so concluded it is neither necessary nor indeed desirable that I should express any more detailed views on each of these issues.

21. Two matters must however be made clear. The first is one of general application. The grant of leave to apply for judicial review is not an indicator of the prospects of success at trial still less a warranty of victory. Neither is it the expression of a view as to the prospects of respondents at trial. It is a decision that applicants have met the low standard of proof required of them namely they have an arguable case. It is nothing more and nothing less than that.

22. The second observation is specific to this case. This grant of leave does not in any way hinder, impede or prevent the continued operation of S.I. 367/2000 or any part of it. That Statutory Instrument continues in full force and operation unless and until such time as this Court directs otherwise. The grant of leave is not such a direction.

23. The order will be that leave will be granted to apply for the reliefs which are set forth in paragraph D of the statement grounding the application upon the grounds set forth at paragraph B. I will hear Counsel as to the time required to exchange documents and prepare for an early trial.

 

 

The People (Director of Public Prosecutions) v. M.S.

Keane C.J.

[2003] 1 IR 608

S.C.

 

Keane C.J.
2nd April, 2003

This is a consultative case stated by Judge Michael O’Shea of the Circuit Criminal Court pursuant to s. 16 of the Courts of Justice Act 1947.
The circumstances in which the case stated has come before this court should be first set out. The accused was charged in December, 1996, with having committed a number of offences of indecent assault contrary to s. 62 of the Offences Against the Person Act 1861 and one count of sexual assault contrary to the s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. He was then given leave to institute proceedings by way of judicial review in the High Court prohibiting the continuance of the prosecution on the ground that the time which had elapsed since the offences were alleged to have been committed (in the years 1974 and 1975) would prevent him from receiving a fair trial. In February, 1999, that application was dismissed by the High Court and, on an appeal to this court, the order of the High Court was affirmed on the 19th December, 2000.
On the 1st June, 2001, the District Court made an order returning the accused for trial to the Circuit Criminal Court. The Director of Public Prosecutions gave notice that he had intended to have the accused arraigned before a jury at a special sitting of the Circuit Criminal Court, Dundalk, County Louth, on eleven counts in the indictment alleging indecent assault contrary to s. 62 of the Act of 1861. At a special sitting of the court in Dundalk, which dealt with certain pre-trial applications by both the prosecutor and the accused, the latter gave notice of his intention, at the time of arraignment, to apply to the court to quash the eleven counts with which it was intended to proceed on the ground that s. 62 of the Act of 1861 was inconsistent with the provisions of the Constitution and had ceased to be in force as of the enactment of the Constitution because, in particular, it was inconsistent with the provisions of Articles 38.1, 40.1 and 40.3 of the Constitution and on the ground that it violated the provisions of Articles 5, 6 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On the 29th July, 2002, the Circuit Court Judge directed the accused to serve notice on the Attorney General that he had raised in the proceedings a question as to the inconsistency of the provisions of s. 62 of the Act of 1861 with the Constitution.
At the special sitting of the court in Dundalk on the 7th October, 2002, the Circuit Court Judge heard an application on behalf of the accused to quash the eleven counts in the indictment on those grounds. He also heard submissions on behalf of the prosecutor and the notice party as to whether he had jurisdiction to hear the application to quash the indictment. The submission on behalf of the accused was essentially to the effect that, since the maximum sentence in the case of an indecent assault, where the complainant was a male, was ten years penal servitude, but where the complainant was a female was (in the case of a first offence) two years imprisonment, the statutory provision in question constituted an unlawful discrimination on the ground of sex which was in violation of the Articles of the Constitution and of the European Convention on Human Rights and Fundamental Freedoms, already been mentioned.
It was submitted on behalf of the prosecutor and the notice party that the Circuit Court could not lawfully consider the issue as to whether the legislative provisions in question were inconsistent with the Constitution. The Circuit Court Judge acceded to a request made on their behalf that this question should be referred to this court by way of consultative case stated for determination by this court. It was also submitted on their behalf that, if the Circuit Court Judge acceded to their application then, in addition, the questions of law arising in the substantive application made on behalf of the accused should also be referred to this court. It was submitted on behalf of the accused that the jurisdiction of the Circuit Court to hear and determine the application was clear.
Having considered those submissions, the Circuit Court Judge acceded to the application on behalf of the prosecutor and the notice party to state a case. In para. 16 of the case stated, the question of law for determination by this court are set out as follows:-
“(i) Does the Circuit Criminal Court have jurisdiction to hear and determine an application by a person, represented in proceedings before it, to the effect that a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution?
(ii) Are the provisions of s. 62 of the Offences Against the Person Act 1861 inconsistent with the Constitution?
(iii) Does the Circuit Criminal Court have jurisdiction to hear and determine an application by a person, represented in proceedings before it, to the effect that a statute enacted prior to the coming into force of the European Convention on Human Rights and Fundamental Freedoms 1950 is inconsistent with that convention?
(iv) Are the provisions of s. 62 of the Offences Against the Person Act 1861 in violation of the European Convention on Human Rights and Fundamental Freedoms 1950?
(v) If the said provisions are in such violation of the said convention, what consequences, if any, flow therefrom?”
At the outset of the hearing of the case stated, the court invited counsel to address them on the issue of whether the court had jurisdiction to hear and determine the case stated. Having heard submissions, it indicated that it would reserve that question until it had heard submissions by counsel as to how the first question in the case stated should be answered i.e., as to whether the Circuit Criminal Court has jurisdiction to consider the question whether a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution.
It was accepted that, in the event of the answer to that question being in the negative, it would follow that the Circuit Court had no jurisdiction to raise the question at (ii) for determination by this court. It is clear from the decision of the former Supreme Court in Foyle Fisheries Commission v. Gallen (1960) 26 Ir. Jur. Rep. 35 that a Circuit Court Judge is not entitled to state a case to the High Court on a question as to the validity of a statutory provision having regard to the Constitution. The same consequences must follow if the Circuit Court Judge is similarly precluded from deciding a question as to whether a statute enacted before the coming into force of the Constitution is inconsistent with the Constitution and, hence, of no effect: a Circuit Court Judge cannot ask this court to answer a question of law so as to enable him to resolve an issue which he is constitutionally precluded from deciding.
It is also clear, and no argument to the contrary was pressed on the hearing of the appeal, that since the European Convention on Human Rights and Fundamental Freedoms has not been incorporated into Irish law by legislation and is not part of the law of the State, the Circuit Court has no jurisdiction to determine whether any statutory provision is inconsistent with the convention, any more than can this court, the High Court or the District Court. Judges can and do refer to the Convention and the jurisprudence of the Court of Human Rights by way of analogy when considering issues relating to matters to which the Convention applies, but it is not within their jurisdiction to determine whether a particular statutory provision is of no effect because it is in breach of, or inconsistent, with the Convention. It has been clear that this is the law in Ireland since the decision of the former Supreme Court in In Re Ó Laighléis [1960] I.R. 93.
The court was also concerned with the question as to whether, in any event, the Circuit Court had jurisdiction to state a case pursuant to s. 16 of the Courts of Justice Act 1947 at the stage when it purported to do so. The section provides that:-
“A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than a re-hearing, under section 196 of the Income Tax Act 1918 of any such appeal as is referred to in the said section) pending before him, refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such mater to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated.”
The application for a case stated was made in this case before the accused was arraigned. Where such an application is made after an accused person is arraigned and placed in the charge of the jury and before the jury have returned their verdict, it is beyond argument that it cannot be entertained by the trial judge: see the decision of this court in The People (Attorney General) v. McGlynn [1967] I.R. 232.
It was also held by this court, however, in The People (Director of Public Prosecutions) v. E.F. (Unreported, Supreme Court, 24th February, 1994) that different considerations applied where, as here, the Circuit Judge stated a case in respect of points of law raised on behalf of the accused on a motion to quash an indictment preferred by the Director of Public Prosecutions. That was also a case where the accused had been charged with a number of counts of indecent assault and it was sought to quash the indictment on the ground that the offence charged was no longer known to the law, that the indictment was duplicitous and that the delay in bringing the matter to trial would preclude the accused from having a fair trial in due course of law. It is clear from the judgment of Egan J., with whom the other members of the court (Finlay C.J., O’Flaherty, Blayney and Denham JJ.) agreed, that he was satisfied that, in such circumstances, the reasons which had led the court in The People (Attorney General) v. McGlynn [1967] I.R. 232 to conclude that there was no jurisdiction to state a case did not arise. However, he was also of the view that it would have been more appropriate for the questions relating to delay to have been brought before the court by way of judicial review, as had also been held in State (O’Connell) v. Fawsitt [1986] I.R. 362.
It is true that the first question posed in the case stated raises a question which would normally be appropriate to be determined in the first instance by the High Court in proceedings brought by way of judicial review or in some other form. It is certainly unusual for this court to determine, as a court of first instance, issues which not only relate to the jurisdiction of a court but also to the interpretation of the Constitution. However, as was made clear by Walsh J. in The State (Browne) v. Feran [1967] I.R. 147, while it is not permissible for legislation to subtract from the jurisdiction directly conferred by the Constitution itself on the High Court and this court, it is permissible for the legislature to confer additional jurisdictions on the High Court and this court, the examples given in his judgment being an appellate jurisdiction in the High Court and a consultative jurisdiction in this court.
I am, accordingly, satisfied that the application before the Circuit Court Judge in the present case is a “matter … pending before him” within the meaning of s. 16 of the Courts of Justice Act 1947 and one in the course of which he may refer a question of law to this court by way of case stated for determination by this court. This was, of course, a matter which, assuming it was within his jurisdiction, could be determined by the trial judge without hearing any oral evidence and, accordingly, the question as to the jurisdiction of the Circuit Court to state a case under the section where not all the evidence has been heard by the trial judge does not arise. The question has led to a significant divergence of opinion in this court – see the decisions in Corley v. Gill [1975] I.R. 313, Dolan v. Corn Exchange [1975] I.R. 315, Director of Public Prosecutions v. Gannon (Unreported, Supreme Court 3rd June, 1986) and Doyle v. Hearne [1987] I.R. 601 – but does not arise in this case.
I am also satisfied that, if there was any ambiguity in the provisions of s. 16, which I do not think there is, the requirements of justice would be better met by resolving the issue posed in para. (i) than by leaving it to be determined by the Circuit Court Judge. If he were to conclude that he was entitled to determine the question posed in para. (ii) and, further, to hold that the impugned provision of the Act of 1861 was inconsistent with the Constitution, the prosecutor would inevitably seek to challenge his decision by applying to the High Court for leave to institute proceedings by way of judicial review. That might lead to a further hearing in the High Court followed by an appeal to this court. Equally, if he were to hold that he had no jurisdiction to resolve that issue, an application might well be made on behalf of the accused for leave to apply for an order ofmandamus by way of judicial review requiring him to determine that issue. Either course could only result in further delay in the hearing of proceedings which, in the interests of the accused and his alleged victims and in the public interest, should be heard and determined with such expedition as is consistent with the proper administration of justice.
I turn now to the question posed in para. (i) of the case stated,i.e., whether the Circuit Court has jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution.
Article 34 of the Constitution provides inter alia as follows:-
“2.  The Courts shall comprise Courts of First Instance and a Court of Final Appeal.
3.  1 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, whether civil or criminal.
2 Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any court established under this or any other article of this Constitution other than the High Court or the Supreme Court.
3 No court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the bill for such a law shall have been referred to the Supreme Court by the President under the said Article 26.
4 The Courts of First Instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.
4.  1 The Court of Final Appeal shall be called the Supreme Court
…”
In The State (Sheerin) v. Kennedy [1966] I.R. 379, this court considered the meaning of the words “validity of any law having regard to the provisions of this Constitution” in Article 34.2.2. That case was concerned with Article 40.4.3 which provides that:-
“Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated …”
It was held in that case that the “law” referred to in that Article was a law enacted by the Oireachtas. In the course of his judgment, Walsh J., with whom Ó Dálaigh C.J., Lavery, Haugh and O’Keeffe JJ. agreed, said at p. 386:-
“Articles 34 and 40, where the law referred to is not expressly referred to as a law of the Oireachtas, in my view must be treated as meaning that the validity in question is a validity to be determined by the provisions of the Constitution in respect of something purporting to have been done within the terms of the Constitution and within the powers conferred by the Constitution.”
In the result, it was held that an Act of the Parliament of the United Kingdom or of the Oireachtas established under the Constitution of Saorstat Eireann was not a “law” within the meaning of those Articles. No question could arise as to the power of the Parliament of the United Kingdom or the Oireachtas of Saorstat Eireann to enact such measures: if they have ceased to be of effect in our law, it is because, although validly enacted by the legislature in question, the impugned provision is inconsistent with the provisions of the Constitution and, hence, did not survive the enactment of the Constitution by virtue of Article 50.1. That provision states:-
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstat Eireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
While it was sought to argue on behalf of the prosecutor and the notice party in the present case, that the principle laid down in that case did not apply to the words in Article 34.3 (“the validity of any law having regard to the provisions of the Constitution”), I am satisfied that such an argument is simply unstateable. The words used are virtually the same as those in Article 40.4.3. They are precisely the same as those in Article 34.4.5 which requires one judgment only to be given in this court in a case concerning “the validity of a law having regard to the provisions of this Constitution”. As Walsh J. pointed out, that Article has invariably been construed by this court as permitting more than one judgment to be given where the law, the constitutionality of which is in issue, was in force prior to the enactment of the Constitution.
It was submitted on behalf of the accused in this case that, having regard to the decision in The State (Sheerin) v. Kennedy [1966] I.R. 379, the Constitution did not preclude a court of local and limited jurisdiction, such as the Circuit Court, from determining an issue as to the constitutionality of pre-1937 legislation and that since, as held by this court in The People v. Lynch [1982] I.R. 64 and Coughlan v. Judge Patwell [1993] 1 I.R. 31, the judges of such courts are under the same obligation to uphold the Constitution and the law as judges of the courts created by the Constitution itself, it follows that the Circuit Court Judge in this case was not only entitled, but obliged, to resolve the issue of the constitutionality of s. 61 of the Act of 1861, when that issue was raised by a person in proceedings before him. Counsel relied in support of that proposition on the decision of the High Court in Director of Public Prosecutions (Stratford) v. O’Neill [1998] 2 I.R. 383 and of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. J.T. (1988) 3 Frewen 141.
In Director of Public Prosecutions (Stratford) v. O’Neill [1998] 2 I.R. 383, the court was concerned with the provision of s. 5(1) of the Summary Jurisdiction Over Children (Ireland) Act 1884. Under that provision, the District Court was obliged to consider the”character and antecedents of the person charged” before the court could determine to try the case summarily. A question having been raised in the District Court as to whether s. 5(1) of the Act was constitutional, the Attorney General was put on notice and an application made to the District Court Judge to state a case to the High Court inquiring, inter alia, whether such a case stated could be referred by a judge of the District Court to the High Court in respect of the constitutionality of a pre-1937 law. In his judgment, Smyth J. said at p. 390:-
“If, in appropriate proceedings, the District Judge is faced with a conflict between a pre-1937 law and the Constitution, he is bound to give effect to the higher law, namely, the Constitution by ‘dis-applying’ the ordinary law. However, this does not mean that the accused could, as it were, institute the equivalent of declaratory proceedings in the District Court to challenge the validity of pre-1937 legislation, but rather, where, as in this case, the constitutional question arose incidentally in the course of ordinary proceedings the District Judge has jurisdiction to pronounce on the question.”
A different view had been taken by Carroll J. in State (Pheasantry Limited) v. Donnelly [1982] I.L.R.M. 512, a case which is not referred to in Director of Public Prosecutions (Stratford) v. O’Neill [1998] 2 I.R. 383. In that case the constitutionality of s. 28(1) of the Intoxicating Liquor Act 1927, providing for the forfeiture of a licence in certain circumstances, was challenged in proceedings in the High Court seeking relief by way ofcertiorari. An argument was advanced that the prosecutor had not exhausted the remedies open to it by appealing from the relevant order of the District Court to the Circuit Court. The learned trial judge rejected that argument, saying at p. 518:-
“Once the prosecutor had decided to challenge the constitutionality of the Intoxicating Liquor Act, 1927, in respect of the charges against him, the only way open to him was to proceed by way ofcertiorari. He could not argue the constitutionality of the Act in either the District Court or the Circuit Court. He must come to the High Court in order to do so.”
It should, however, be pointed out that it is not clear whether any arguments were addressed to the court in that case in support of the proposition that was successfully advanced in Director of Public Prosecutions (Stratford) v. O’Neill [1998] 2 I.R. 383.
In The People (Director of Public Prosecutions) v. J.T. (1988) 3 Frewen 141, a question arose as to whether the common law rule that the spouse of a party in a criminal trial was not competent to testify against the other spouse was inconsistent with the provisions of Article 41 of the Constitution. The court, having directed that notice should be served on the Attorney General and having adjourned the case in order to enable the latter to be represented, heard arguments as to the constitutionality of the rule in question and concluded that it was inconsistent with the Constitution and had not remained in force by virtue of Article 50 of the Constitution. Again, it should be noted that there is no indication that any arguments were advanced to the court as to its jurisdiction to determine the constitutional issue so raised.
In Kelly on The Irish Constitution (3rd ed.), the editors had this to say at p. 425:-
“Although the lower courts are, by implication, not prevented from considering the constitutional consistency of pre-constitution laws, the mode by which this could happen is unclear. In fact, no pre-constitution law seems yet to have been considered from the constitutional point of view by either the Circuit Court or the District Court; and, as these courts have limited and defined jurisdictions by statute, which do not include the adjudication of the constitutionality of laws of whatever kind, it seems that it would not be possible to challenge e.g., an old statute by means of a declaratory action in the Circuit Court. At the same time the judges of the lower courts take an oath (sic) to uphold the Constitution (Article 34.5.1), and, as pre-Constitution statutes naturally enjoy no presumption of consistency with a Constitution which did not exist when they were enacted, it must follow that a Circuit Court Judge or a District Judge is entitled to consider, if the point arises before him in pleading or argument, whether an old law he is being asked to apply is, in fact, consistent with the Constitution. If this proposition is correct, it would seem that the words used by Carroll J. in the State (Pheasantry Limited) v. Donnelly – she said the applicant ‘could not argue the constitutionality of the [Intoxicating Liquor Act 1927] in either the District Court or the Circuit Court [but] must come to the High Court in order to do so’ – are too broad a statement; he could not , as a plaintiff, have taken the initiative in either of those courts to challenge the Act but as a defendant in a prosecution which rested on that Act he might have asked either court to consider its consistency with a subsequently enacted Constitution.”
The issue that arises is not whether Article 34.3.2, prohibiting the District Court and Circuit Court from entertaining any question as to the validity of any law, having regard to the provisions of the Constitution, is confined in its application to legislation enacted by the Oireachtas. In the light of the decision of The State (Sheerin) v. Kennedy [1966] I.R. 379, it is quite clear that it is. The issue is as to whether the District Court and Circuit Court, which were created by statute as courts of local and limited jurisdiction, enjoy a jurisdiction, in addition to the jurisdictions expressly conferred on them by statute, to determine whether laws in existence at the time of the enactment of the Constitution remained in force by virtue of Article 50 or ceased to have effect because they were inconsistent with the Constitution.
I have no doubt that it was not intended by the framers of the Constitution that an issue as to the constitutionality of a law, whether it took the form of legislation or a rule of the common law, should be determined by a court of local and limited jurisdiction. The Constitution, viewed as a legal instrument, cannot, in my view, be equated to a statute of the Oireachtas or any form of secondary legislation, such as statutory instruments or byelaws, which may have a limited and even a purely local application and which may, appropriately, be construed by courts of local and limited jurisdiction, afforded such assistance as they may require by the High Court or this court, through the case stated machinery. The Constitution, as the fundamental law of the State, has a universal character and adjudications by courts of competent jurisdiction as to the legal efficacy of primary or secondary legislation, or rules of the common law, having regard to the provisions of the Constitution, are binding in their effect on all three organs of the State, not merely in the instant case, but in all cases to which the laws in question have application. To hold that District and Circuit Courts throughout the length and breadth of the State are entitled to adjudicate on those issues in any case where they arise, leading potentially to a multiplicity of conflicting decisions and serious uncertainty as to the state of the law, would be to attach wholly excessive weight to the undeniable fact that such issues are not expressly excluded from the jurisdiction of those courts.
Where individual judges of the Circuit or District Courts give conflicting decisions as to the meaning of primary or secondary legislation, any difficulties that may arise can be dealt with by amending legislation. The framers of the Constitution cannot, in my view, have envisaged that a similar situation could arise where the constitutional validity of a particular law was in issue and where the problems arising from conflicting adjudications by courts throughout the country could only be resolved by the holding of a referendum.
It must also be remembered that the wording of Article 34.3.4 does not preclude the Oireachtas from establishing courts of first instance, other than the High Court, which are not courts of local and limited jurisdiction, as pointed out by Walsh J. in The State (Boyle) v. Neylon [1986] I.R. 551. A court of that nature, being neither local nor limited in its jurisdiction, might be conferred with a jurisdiction to entertain constitutional issues other than the validity of a post-1937 statute. Similarly, while this court is the only court of final appeal which may be established under the Constitution, it was possible for the Oireachtas to provide for other appellate courts, the jurisdiction of which, while limited, could, in no sense, be regarded as “local”. Thus the Oireachtas of Saorstat Eireann availed of that power to establish a Court of Criminal Appeal, as did the Oireachtas under the present Constitution. That may be the explanation of the decision of that court in The People (Director of Public Prosecutions) v. J.T. (1988) 3 Frewen 141. Since, however, the issue as to the jurisdiction of the court to consider the constitutionality of the common law rule under scrutiny does not appear to have been raised or argued, the question as to whether that court enjoys such a jurisdiction can be left for another occasion.
This analysis would suggest that, even on a literal reading of the Constitution, the proposition which found favour in Director of Public Prosecutions (Stratford) v. O’Neill [1998] 2 I.R. 383 is not necessarily correct. Even if a literal reading did lend support to that decision, however, I am satisfied that a reading having results which cannot have been within the contemplation of the framers of the Constitution should be avoided, unless only that construction is open. As Henchy J. put it in a frequently cited passage in The People v. O’Shea [1982] I.R. 384, at p. 426:-
“I agree that if the relevant subsection of the Constitution is looked at in isolation and is given a literal reading, it would lend itself to [the interpretation that an acquittal by a jury could be appealed to the Supreme Court.] But I do not agree that such an approach is a correct method of constitutional interpretation. Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life’.”
As is accepted in the passage I have already cited from Kelly onThe Irish Constitution (3rd ed.), the legislature has in any event not conferred on the Circuit Court or the District Court any jurisdiction to grant relief in the form of a declaration that a particular statute is inconsistent with the Constitution. It would be a strange statutory scheme which would preclude such an issue being raised, as it almost invariably is in the High Court, with the full panoply of pleadings, but enable it to be raised by a defendant where, in the words of Smyth J., it arose”incidentally” in the course of ordinary proceedings. However, I do not rest my view that the District and Circuit Courts enjoy no such jurisdiction simply on the absence of legislation: if it were necessary so to decide in the present case, I would hold that legislation purporting to confer on those courts a jurisdiction to entertain such issues would be constitutionally invalid as being irreconcilable with their status as courts of local and limited jurisdiction.
It is true that in The People v. Lynch [1982] I.R. 64, Walsh J. said at p. 84 that:-
“… the judges of the District Court and judges of the Circuit Court are not dispensed from, or expected to overlook, their constitutional obligation to uphold the Constitution in the discharge of their constitutional and legal function of administering justice.”
To the same effect is the observation of Denham J. in Coughlan v. Judge Patwell [1993] 1 I.R. 31, where she said at p. 37:-
“… while the District Court is a court of limited statutory power, it remains at all times a court which must protect the individual constitutional rights of the person.”
Those observations are, in my view, perfectly consistent with the District Court or the Circuit Court having no power to determine issues as to the constitutional validity of legislation or rules of the common law, whether dating from before or after the enactment of the Constitution. Unless and until the legislation in question is found to be constitutionally invalid by the High Court or this court, the trial judge discharges his or her constitutional duty by upholding it and applying it to the facts of the case before him or her. There is ample machinery available to the litigant who is advised that any particular law is arguably unconstitutional to institute appropriate proceedings to have that issue resolved in the superior courts.
I am confirmed in these views by the decision of this court in I. O’T. v. B. [1998] 2 I.R. 321. That was also a case stated from the Circuit Court in which the Circuit Court Judge posed a number of questions, including the question as to whether he was correct in holding that the Circuit Court does not have jurisdiction to ascertain and declare, concurrently with the High Court and this court, what the unenumerated rights of the citizen which are guaranteed by the Constitution actually are and that the Circuit Court is limited to defending and vindicating unenumerated rights which have been actually ascertained and declared by the Superior Courts. In answering that question in the affirmative, Hamilton C.J. said at p. 342:-
“I am satisfied that it was the intention of the framers of the Constitution that all matters pertaining to the interpretation of the provisions of the Constitution should be decided by the courts whose jurisdiction derives from the Constitution itself and not by courts of limited and local jurisdiction whose jurisdiction is derived from Acts of Oireachtas.”
That passage should, of course, be read subject to the qualification that it may be possible to establish by statute courts of limited, but not local, jurisdiction, such as the Court of Criminal Appeal, enjoying a jurisdiction to decide that pre-1937 laws are inconsistent with the Constitution.
I would, accordingly, answer the questions in the case stated as follows:-
(1) no;
(2) does not arise;
(3) no;
(4) does not arise;
(5) does not arise.

Denham J.
I agree.

Murray J.
I also agree.

McGuinness J.
I also agree.

Hardiman J.
I also agree.

Barry White v The Bar Council of Ireland

the Minister for Justice and Equality, Ireland and the Attorney General
2016 437

Court of Appeal

6 December 2016

unreported
[2016] IECA 363
Ms. Justice Finlay Geoghegan

December 6, 2016

JUDGMENT
1. The Minister has appealed against orders made by the High Court on the 28th July, 2016, relating to the claims against the State respondents to whom I will refer for convenience as the Minister. In this judgment I propose referring to Mr. White, the applicant in the proceedings as the respondent.

2. The orders of the High Court against which the Minister has appealed are:-

1. An order of certiorari quashing the decision of the Minister communicated by letters dated the 29th May, 2015 and the 9th October, 2015, to refuse to include the respondent’s name on the panel of counsel eligible to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965.
2. A declaration that there is no requirement in law for the respondent to be a member of the Law Library and subject to the regulatory or disciplinary provisions of the Code of Conduct of the Bar of Ireland before he may be eligible for inclusion on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965.
3. A declaration that the decision of the Minister to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965 was taken ultra vires and is bad in law.
4. A declaration that the decision of the Minister to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965 is unreasonable in law.
5. A declaration that the decision to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965 results in a disproportionate interference with his constitutional rights protected under Article 40.1 and/or 40.3 and/or 43 of the Constitution.
3. The orders were made for the reasons set out in the judgment of Barrett J. delivered on the 22nd July, 2016.

4. By order of the 21st October, 2015 (Noonan J.) the respondent was granted leave to seek multiple reliefs by way of judicial review against the Bar Council and the Minister as set out in a statement of grounds dated the 20th October, 2015. In the High Court the respondent’s claims against both the Bar Council and the Minster were pursued and heard together and all evidence adduced was treated as evidence against all respondents in the High Court. The judgment of 22nd July 2016 decided all issues.

5. The claims against the Bar Council were dismissed. They primarily concerned the lawfulness of Rule 5.21 of the Code of Conduct of the Bar of Ireland. The order of the 28th July 2016 does not, however, include an order dismissing the claims against the Bar Council, but rather adjourns same to the Michaelmas term pending a ruling on the costs of the proceedings. The Court was informed at the hearing of the appeal that the ruling has not been given and the question as to whether the respondent intends to appeal the dismissal of his claims against the Bar Council is not decided.

6. The Bar Council did not participate in the Minister’s appeal. It was not named as either a respondent or notice party to the appeal. Nevertheless having regard to the issue arising it is, in retrospect, perhaps unfortunate that they were not represented and anything said in this judgement is said without any submission from the Bar Council.

7. Counsel for the Minister and respondent were in agreement that the central issue in the appeal is the proper construction of the Criminal Justice (Legal Aid) Act 1962, and the Criminal Justice (Legal Aid) Regulations 1965 (S.I. No. 12 of 1965) made thereunder and in particular Regulation 5 thereof. Counsel for the respondent, nevertheless drew attention to certain facts which he submits are important to the context in which the challenged decision of the Minister was taken. I propose therefore setting out briefly the background facts and the facts relied upon as leading to the decision of the Minister.

8. The respondent was called to the Bar in 1967 and became a subscribing member of the Law Library; became a senior counsel in 1982; remained in full time practice in the Law Library continuously from his call in 1967 until he was appointed a judge of the High Court in 2002. He retired, on age, from the High Court on the 13th day of September, 2014. Whilst in practice as a barrister, the respondent’s name was included on the panel of counsel willing to act for persons to whom certificates for legal aid had been granted under the 1962 Act. His area of practice, expertise, knowledge and specialisation was as a criminal defence barrister and he has deposed that his earnings from practice derived predominantly from payments under the Criminal Legal Aid Scheme.

9. Prior to retirement as a judge of the High Court, the respondent made a decision that he would seek to return to practice at the Bar. He has deposed that this was by reason of financial necessity and to support his four children who were then in full time education. He wrote to the Bar Council and completed an application form to resume his membership of the Law Library. The initial response was that he could do so on condition that he agreed to be bound by the Code of Conduct of the Bar. This includes at rule 5.21:-

“Judges of the Irish Courts, following retirement or resignation, who return to the Bar may not practice in a court of equal or lesser jurisdiction than the court of which they were a judge.”

10. The respondent then sought a waiver of rule 5.21 pursuant to rule 13 of the Code of Conduct in September 2014. This was refused in November 2014.

11. Thereafter, the respondent has deposed that “… notwithstanding my preference to be readmitted to the Law Library, I decided to pursue my re-entry to practice without being a member of the Law Library”. By letter of the 14th November, 2014, he notified the Bar Council that he wished to be placed on the list of counsel compiled pursuant to the provisions of the 1965 Regulations and sent a copy to the Minister with his Tax Clearance Certificate and his Barrister’s PAYE number.

12. By letter of the 5th December, 2014, the Director of the Bar Council forwarded to the Minister the respondent’s letter dated the 14th November, 2014 and then stated:-

“Barry White is a recently retired member of the High Court. He is not currently a member of the Law Library. He does not fall under the jurisdiction of the Bar Council and is not subject to the Code of Conduct for the Bar of Ireland. He is, therefore, not subject to the regulatory or disciplinary structures applicable to members of the Law Library. Mr. White was a member of the Law Library before his appointment to the High Court in July 2002.

Without prejudice to this, and strictly on the basis that the Bar Council is named in Regulation 5 of the Criminal Justice (Legal Aid) Regulations 1965, (as amended) and Regulation 4(3) of the Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations, 1999, the Bar Council hereby informs the Minister of Mr. White’s stated willingness to act for persons to whom certificates for legal aid have been granted. However, by doing so, the Bar Council is not in a position to, and does not, provide any further warranty or representation whatsoever in relation to Mr. White.”

13. The respondent deposed that between December 2014 and May 2015, there were a number of contacts with the office of the Minister and he attended a meeting with Mr. Condon, the official in the Department dealing with the matter. The respondent has deposed and it is not in dispute that the fact that there were a number of barristers on the legal aid panel who were not then members of the Law Library was discussed; further there was reference to the fact that such barristers are regulated by King’s Inns or the Benchers of the Honourable Society of King’s Inns.

14. Counsel for the respondent drew attention to a note exhibited by the Director of the Bar Council to her affidavit in the High Court of a meeting between the same official and members of the Bar Council on the 5th March, 2015. The respondent was not present at that meeting. The same two matters were discussed at that meeting.

15. Mr. Condon, the Principal Officer in the Department dealing with the issue has deposed and explained that prior to receipt of the respondent’s application:-

“The Minister and the Department had proceeded upon the assumption and understanding, that all counsel notified to it by the Bar Council for inclusion on the list kept pursuant to the 1965 Regulations were associated with the Bar Counsel and were subject to regulation by the Bar Counsel and were, in consequence members of the Law Library.”

16. He further deposed that following the application, legal advice was taken and a new form of application put in place requiring counsel seeking to have their name put on the list to confirm that they were subject to regulation by the Bar Council. He deposes that it was in the context of this change that the meeting of the 5th March took place.

17. Ultimately by letter of the 29th May, 2015, the respondent was informed of the Minister’s decision. That letter records what was stated to the Minister in the letter from the Bar Council of the 5th December, 2014 and then states:-

“The Minister has taken the view that the Barrister’s name could only be added to the defence counsel list where that person is subject to regulation i.e. subject to regulation by the Bar Council as the Council is currently the only regulatory body for counsel.

The Department informed the Bar Council on the 13 February, 2015, that the notification of the 5 December, 2014, did not constitute notice of your wish to be placed on the Criminal Legal Aid panel pursuant to the Criminal Legal Aid Regulations 1965 as the Bar Council only has authority to forward the names of those subject to regulation by the Bar Council.

The Minister therefore is not in a position at this time to add your name or any name to the Counsel list unless the Bar Council is in a position to indicate that you or any such person is subject to regulation by the Council.

You will be aware that under the terms of the Legal Services Regulation Bill it is envisaged that the new Legal Services Regulatory Authority will become the regulatory authority in respect of all legal practitioners including practising Barristers whether they are or not members of the Law Library/Bar Council.”

18. Thereafter the respondent made further attempts to seek a waiver from the Bar Council of rule 5.21. These included giving certain undertakings. The respondent then wrote to the Minister setting out those attempts and the proposed undertakings. The Bar Council by letter of the 28th September, 2015, informed the respondent of its renewed decision to refuse to grant waiver of rule 5.21. By letter of the 9th October, 2015, (addressed to his solicitors) the respondent was informed that the Minister’s decision in the terms of the letter of the 29th May, 2015, remained unchanged. A further explanation given was:-

“In this regard the Department is bound to act in accordance with the statutory requirements and the only question for the Department is whether the application it has received has been forwarded by the Bar Council under the Criminal Legal Aid Regulations 1965 ie. on behalf of a party which is subject to regulation by the Bar Council.”

19. The letters of 29th May, 2015 and 9th October, 2015 were the only evidence before the High Court of the decision taken by the Minister and the reasons therefore.

20. Those were the essential facts upon which the trial judge was asked to decide upon the respondent’s claims against the Minister.

21. From a full reading of all the affidavits and multiple exhibits it appears, that notwithstanding that reference was made to the regulation of Barristers including those who were not members of the Law Library by the Benchers of the Honourable Society of King’s Inns, no one, including it would appear the Bar Council considered the then Rules of King’s Inns. The Court drew attention to these at the commencement of the hearing of the appeal.

22. It does not appear to be in dispute between the Minister and the respondent that the respondent upon ceasing to hold office as a judge of the High Court is a barrister. There appears to be some dispute as to whether at the time of the notification by the Bar Council to the Minister he was a practicing barrister. As a barrister, the respondent is a member of King’s Inns. Rule 30 of the Rules of King’s Inns provides (and did in 2014/15):

Concomitant with the rights and privileges conferred on barristers, it is the duty of barristers:
(a) to comply with the provisions of the Code of Conduct for the Bar of Ireland when acting, or holding themselves out, as barristers including but not limited to the provision of advocacy services, legal advices, opinions and drafting of court or other legal documents and all related and connected activities and this duty shall apply notwithstanding any omission of a barrister to comply with the undertaking given to the Society prior to or on the occasion of admission to the degree of Barrister-at-Law, including the undertaking not to embark on practice as a barrister without first becoming a subscribing member of the Law Library, the undertaking to continue in practice only while retaining membership of the Law Library and the undertaking to observe the Code of Conduct of the Bar of Ireland and to submit to the disciplinary jurisdiction of the Bar Council;
(b) not to engage in conduct (whether in pursuit of their profession or otherwise) which is dishonest or which may bring the barristers’ profession into disrepute or which is prejudicial to the administration of justice or commit a criminal offence;
(c) to observe the ethics and etiquette of their profession;
(d) to be competent in all of their professional activities;
(e) to conduct their profession as barristers so as to ensure that there is no serious falling short, by omission or commission, of the standard of conduct expected of a barrister;
(f) to be individually responsible for their own conduct and
(g) to co-operate with any investigations conducted by the Bar Council or any Committee established under these Rules including appearing before the Disciplinary Committee established under Rule 31(1) and, if required, giving sworn evidence.
30(2) For the avoidance of doubt a barrister shall submit to the jurisdiction of the Barristers’ Professional Conduct Tribunal, the Professional Conduct Appeals Board or any other similar body that may be established under the Code of Conduct for the Bar of Ireland for the purpose of dealing with complaints against the barrister. The Barristers’ Professional Conduct Tribunal, the Professional Conduct Appeals Board or any other similar body established under the Code of Conduct for the Bar of Ireland shall be entitled to consider and adjudicate upon a complaint notwithstanding any failure by the barrister to attend or participate in the hearing of a complaint before those bodies. The Society may refer a complaint received by it to the Bar Council or such body of the Bar as is appropriate, and where a complaint is so referred to the body, that body shall act as a body of the Society.

30(3) Failure to comply with the duties set out in Rule 30(1) or elsewhere in these rules maybe professional misconduct or amount to a breach of proper professional standards and render barristers liable to disciplinary measures.

30(4) It is the duty of barristers to co-operate with any disciplinary proceedings under these Rules in relation to their professional conduct in a timely manner whether by way of the furnishing of comment or information when required to do so and it is their duty to attend before the Disciplinary Committee. Failure to comply with this duty of co-operation may be viewed as professional misconduct.

30(5) For the avoidance of doubt these rules do not apply to a complaint against a barrister after appointment as a judge.”

23. The reference to the undertaking in the above is an undertaking given to the Benchers since approximately 1985 by every person seeking admission to the degree of barrister-at-law and called to the Bar. It is not my intention to make any finding as to the obligations of the respondent having regard to the rule 30 of the Rules of King’s Inns. Nevertheless it would not be appropriate for this Court to decide the appeal without referring to same. This is particularly so as the respondent has submitted, and the trial judge took into account in his reasoning the fact that barristers who are not members of the Law Library are nevertheless regulated by King’s Inns or perhaps more accurately the Benchers but did not consider the manner in which they are so regulated. I am also conscious that Rule 30 may not have been adverted to by the Bar Council when informing the Minister that the respondent was not subject to regulation by the Bar Council. As the Bar Council was not a party to the appeal it has not been given the opportunity of explaining whether or not this is so.

24. At the time of the Minister’s decision she had been informed that the respondent was not subject to regulation by the Bar Council and upon that basis decided that the notification sent by the Bar Council was not a valid one pursuant to the 1965 Regulations. Irrespective of whether that information was correct it is necessary for the purposes of this appeal to consider and decide whether or not the Minister was correct in law in her decision.

Statutory scheme
25. The statutory scheme for free legal aid in criminal cases is provided for in the Criminal Justice (Legal Aid) Act 1962, as amended. The scheme provides for the granting by the District Court or judges of certain other courts of legal aid certificates to persons charged with criminal offences or where convicted for the purposes of appeals and for certain cases stated. In slightly differing ways the sections provide that a person to whom a certificate for free legal aid has been granted is entitled to free legal aid in the preparation and conduct of his defence at trial or in appeal etc. and “to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act”. This later phrase is one which appears repeatedly in ss. 2, 3, 4 and 5 of the Act. “Counsel” is not defined for the purposes of the Act.

26. Section 10 as originally enacted provided:-

The Minister may make regulations for carrying this Act into effect and the regulations may, in particular, prescribe–
(a) the form of legal aid certificates,
(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas pursuant to such certificates,
(c) the manner in which solicitors and counsel are to be assigned pursuant to such certificates.
(2) Regulations under this section in relation to the matters specified in paragraph (b) of subsection (1) of this section shall not be made without the consent of the Minister for Finance.

(3) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to anything previously done thereunder.”

27. The Criminal Justice (Legal Aid) Regulations 1965 (S.I. No. 12/1965) were made by the then Minister for Justice on the 12th January, 1965 and consented to by the Minister for Finance as required. The Regulations established a scheme for the compilation of lists of solicitors and of counsel who had notified their willingness to act for persons to whom certificates for free legal aid are granted. The scheme for each profession was slightly different. For solicitors, Regulation 4 required each county registrar to compile a list “of the solicitors practising in the county … who have notified him of their willingness to act for persons …”. The county registrar then had to forward the list to the registrars of other courts and the secretary of the Incorporated Law Society. Regulation 4(2) permitted a solicitor to request to have his name deleted from the list and also for the registrar to delete the names of any solicitors in respect of whom an order had been made removing them or striking them off the Roll of Solicitors pursuant to the Solicitors Act 1954 or if suspended from practice. Regulation 5 in relation to counsel provided:-

“5(1) As soon as may be after the making of these Regulations, the Council shall send to the Minister the names of the counsel who have notified it of their willingness to act for persons to whom certificates for free legal aid are granted.

The Minister shall keep a list of the names aforesaid and shall send a copy of the list to—
(a) the registrar of the Supreme Court,
(b) the registrar of the Court of Criminal Appeal,
(c) the registrar of the High Court managing the Central Office of the High Court,
(d) the registrar of the Central Criminal Court,
(e) each county registrar, and
(f) each District Court clerk.
(3) Where, at any time after the compilation of a list in pursuance of this Regulation, the Council is notified by a counsel of his willingness to act for persons granted certificates for free legal aid or of his wish to have his name deleted from the list, the Council shall notify the Minister of such wish and the Minister shall amend accordingly the list kept by him pursuant to this Regulation by adding thereto or deleting therefrom, as the case may be, the name of the counsel and the Minister shall notify the officers mentioned in paragraph (2) of this Regulation of the amendment.

(4) A counsel who is willing to act for persons granted certificates for free legal aid and who wishes to have his name included in the list kept by the Minister pursuant to this Regulation and a counsel who wishes to have his name deleted from such list shall notify the Council in writing and upon receipt of the notification the Council shall notify the Minister and the Minister shall amend accordingly the list kept by him pursuant to this Regulation and shall notify the counsel of the amendment.

(5) In this Regulation “the Council” means the General Council of the Bar of Ireland.”

28. The 1965 Regulations made further provisions for the forms of legal aid certificates, matters to be recorded, the payment of fees and expenses and permitted the assignment of counsel in certain cases.

29. Section 10(1) of the 1962 Act was amended by s. 132 of the Finance Act, 1998, by the addition of subsections which insofar as is relevant included “a requirement that a barrister, the willingness of whom to act for persons for whom legal aid certificates are granted has been notified to the Minister by the General Council of the Bar of Ireland in accordance with the Criminal Justice (Legal Aid) Regulations, 1965, must, when required to do so by the Minister, furnish to the Minister [a tax clearance certificate]…”.

High Court decision
30. The issue of statutory construction, in the High Court as in this Court was whether the above provisions and in particular Regulation 5(3) of the 1965 Regulations permitted the Minister to take the view that the Bar Council is only authorised to submit to her the name of a barrister who had notified it “of his willingness to act for persons granted certificates for free legal aid” if such barrister was subject to regulation by it. The trial judge decided that Regulation 5 of the 1965 Regulations did not permit the Minister to take such a view. He accepted that “counsel” in the 1965 Regulations means a barrister who is qualified to practice in Ireland had observed that such persons are subject to “twin regulation by way of judicial oversight and supervision, on the one part, and the disciplinary committee of the Benchers of the Honourable Society of King’s Inns on the other part”. He considered the Minister was in error in reading into the statutory provisions an additional requirement that an applicant counsel must be regulated by the Bar Council.

Issues on appeal
31. The first issue on appeal is whether or not the Minister was correct in construing the Regulation 5(3) of the 1965 Regulations as meaning that the Bar Council is only obliged to notify to the Minister the name of a barrister regulated by it.

32. The resolution of the issue appears to turn primarily on the proper meaning of “counsel” in the 1962 Act and 1965 Regulations. It is not in dispute that counsel for the purpose of the 1965 Regulations must have the same meaning as it has in the 1962 Act.

33. Similarly there was no dispute about the applicable principles of construction. They are the general principles set out by Blayney J. in Howard v. Commissioners of Public Works [1994] 1 I.R. 101 at 151 and often since repeated. The court was referred in particular to the judgments of Denham J. (as she then was) and McGuinness J. in D.B. v. Minister for Health [2003] 3 I.R. 12, in referring to Howard and summarising the principles. Denham J. at p. 21 having referred to the judgment of Blayney J. in Howard stated:-

“He emphasised that the cardinal rule for the construction of statutes was that they be construed according to the intention expressed in the Acts themselves. If the words of the statute are precise and unambiguous then no more is necessary than to give them their ordinary sense. When the words are clear and unambiguous they declare best the intention of the legislature. If the meaning of the statute is not plain, then a court may move on to apply other rules of construction; it is not the role of the court to speculate as to the intention of the legislature.”

34. As appears from the judgment of Blayney J. in Howard and in particular the extract from Craies on Statute Law (1971) (7th ed.) cited in the context of determining the intention of the legislature as expressed by the words used, it is “natural to enquire what is the subject matter with respect to which they are used and the object in view”. This approach is of some assistance in seeking to determine the intention of the legislature in the 1962 Act and 1965 Regulations by use of the term “counsel” as distinct from “barrister” in conjunction with solicitor.

35. Counsel for both parties accepted at the appeal hearing that the Oireachtas in using the term “counsel” in the 1962 Act in the context of that Act intended to refer to practising barristers. Counsel for the Minister in submission went further than that. He submitted that having regard to the purpose of the Act and certain of the requirements of the 1962 Act e.g. that it “is essential in the interests of justice” that a person should have legal aid in the preparation and conduct of his defence that the Oireachtas in using the term “counsel” intended that such a person be not just a practising barrister but a competent practising barrister. He submitted that such competency may be established by the fact that the barrister is regulated by the Bar Council.

36. Considering the Act of 1962 alone and without the 1965 Regulations, it appears to me that the Oireachtas in using the term “counsel” in the context in which it is used namely, specifying that a person to whom a free legal aid certificate has been granted is then to be entitled “to free legal aid in the preparation and conduct of his defence at the trial and to have a solicitor and counsel assigned to him for that purpose” [emphasis added] intended at minimum that a counsel be a practising barrister i.e. a barrister holding himself out as available to conduct a defence at a criminal trial.

37. It appears to me that the Court is entitled to take judicial notice of the fact, as would have been well known to members of the Oireachtas in 1962 that there are many persons who have been admitted to the degree of Barrister at Law by the Benchers of King’s Inns and called to the Bar by the Chief Justice and thereby admitted to practice in the Courts of Ireland, but who have never either sought to practice as barristers or held themselves out as practising barristers and hence being available to conduct the defence of a criminal trial. Accordingly, I have concluded that in using the term “counsel” in the context of the 1962 Act, the Oireachtas intended it to mean a practising barrister i.e. a barrister holding himself out as available to conduct a defence at a criminal trial and not as the trial judge put it, “a barrister who is qualified to practise in Ireland” which would include all barristers whether practising or not.

38. I cannot, however, accept the submission of counsel for the Minister that in the 1962 Act, the term “counsel” must be construed as meaning a “competent practicing Barrister”.

39. Rather, it appears to me that the Oireachtas in the phrases used in ss. 2, 3, 4 and 5, when describing the entitlement of a person to free legal aid as including “to have a solicitor and counsel assigned to him for [the preparation and conduct of his defence at trial or an appeal] in such manner as may be prescribed by regulations under s. 10 of this Act” and having regard to s. 10(1)(c), intended to confer on the Minister the power to determine by regulation the manner in which a solicitor and a practicing barrister, may be assigned for the purposes of conducting the defence or appeal as the case may be.

40. I accept the submissions made on behalf of the Minister that the policy or purpose of the 1962 Act in providing for free legal aid in the form of assignment of solicitors and practising barristers to assist in the preparation and conduct of a defence of those charged with offences may include an intention that any solicitors or barristers assigned be competent to provide the relevant assistance. However the Act itself by the use of the word “counsel” does not indicate the manner in which a practising barrister is to be determined as eligible to be assigned to a person to whom a legal aid certificate has been granted. Rather the wording of ss. 2, 3, 4, 5 and 10(1)(c) of the 1962 Act evidence an intention that it is the Minister by regulation who should determine such matters.

41. If I am correct that the Minister was empowered by s.10(1)(c) to regulate which counsel or practising barristers might be eligible for assignment then logically the next question is whether, as submitted by counsel for the Minister, the system established by regulation 5 of the 1965 Regulations for the compilation of the list of the names of counsel who might be assigned to persons to whom legal aid certificates were granted is confined to practising barristers who are subject to regulation by the Bar Council. Counsel for the Minister submitted that the Court should take judicial notice of the fact that in 1965 all practicing barristers were members of the Law Library and subject to regulation by the Bar Council. Counsel for the respondent submitted that the court should not do so and that there was no evidence to this effect. He submitted that Regulations 4 and 5 of the 1965 Regulations properly construed for the purpose of carrying the 1962 Act into effect are intended as administrative mechanisms to identify those solicitors and practising barristers willing to act for persons to whom legal aid certificates have been granted. He submitted that the intent of the 1965 Regulations is to give to every practising solicitor and every practising barrister the right to decide whether s/he wishes to put her/himself onto the list as a solicitor or barrister willing to act for persons to whom free legal aid certificates are granted.

42. What then was the purpose of the Minister in providing that counsel be notified to him via the Bar Council? In a context where counsel means a practising barrister, regulation 5 at minimum, identifies the Bar Council as the body which can with authority identify for the Minister which barristers are “counsel” within the meaning of the 1962 Act i.e. practising barristers. It must also be recalled that in 1965 unlike solicitors practising barristers were not regulated by Statute and were not required to hold practising certificates. There was no objective way of the Minister deciding who was a practising barrister. Hence, the system established by the Minister by regulation 5 does appear to include an intention by the Minister that the Bar Council would identify for her/him those persons who are practising barristers. It would be reasonable to take judicial notice of the fact that the Bar Council was in 1965 the recognised professional body for practising barristers as was the Incorporated Law Society (referred to in Regulation 4) for solicitors.

43. Can the 1965 Regulations also be construed as including an additional intention that the practising barristers who might notify are limited to those subject to regulation by the Bar Council?

44. I do not consider it necessary to decide whether the Court should take judicial notice of the fact for the purpose of construing the 1965 Regulation that all practising barristers were then members of the Law Library without evidence.

45. The earliest Code of Conduct of the Bar of Ireland exhibited in the affidavit of Ciara Murphy is the 1985 Code. That code makes it the duty of every barrister to comply with the provisions of the Code. That obligation does not appear to be confined to a practising barrister which it defines (r. 2.1) as “… one who holds himself out as willing to appear in court on behalf of or to give legal advice and services to clients for reward” and also a person holding the position of Attorney General. It provides that the Law Library is the central and primary place for practice for the Bar of Ireland and that it is desirable that all practising barristers should be members of the Law Library. Those rules appear to have been adopted in July 1985. The 1985 rules at 7.10 provided: “a barrister shall not have his name placed on the Legal Aid Panel until he has completed six months devilling or until he has been a member of the Law Library for one year”.

46. Irrespective, of whether or not all practising barristers were members of the Law Library subject to regulation by the Bar Council in 1962, it does not appear to me that the Court can construe regulation 5(3) of the 1965 Regulations as limiting eligible counsel to those regulated by the Bar Council or only permitting the Bar Council to notify the Minister where it receives notification from a practising barrister whom it perceives to be subject to its jurisdiction. It appears to me that counsel for the respondent is correct in his submission that the scheme established by the 1965 Regulations and in particular regulations 4 and 5 is that it gives to each practising solicitor or practising barrister the right to decide whether he or she wishes to notify his or her willingness to act for persons to whom certificates of legal aid are granted. The difference in the notification systems for solicitors and barristers is explicable in the context of the Statutory control and practising certificates applicable for solicitors and the absence of same for barristers. In accordance with the words used, the Bar Council, when it receives notification from a person whom it is satisfied is then a practising barrister of such willingness, “shall notify the Minister of such wish”. The Bar Council must of course satisfy itself for the purposes of the 1965 Regulations that the person concerned is a “counsel” i.e. a practising barrister but the 1965 Regulations construed in accordance with the words used and principles set out do not intend any greater control by the Bar Council in determining eligibility to go on the list

47. In the course of submissions, counsel for the Minister submitted that the respondent in any event did not appear to satisfy the requirement of being a practising barrister. That is disputed on his behalf and our attention was drawn to the decision deposed to by him in his affidavit “to pursue my re-entry to practice without being a member of the Law Library”. There is no evidence before the Court that the Bar Council prior to writing to the Minister addressed the question as to whether or not the respondent was a practising barrister at the relevant time. It is not an issue for decision on this appeal.

48. It follows from my above conclusions that the trial judge was correct in concluding that the Minister’s decision to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the 1965 Regulations, for the reason then given, was ultra vires, and that the respondent was entitled to an order of certiorari quashing the decision of the Minister communicated by the letters dated the 29th May, 2015 and the 9th October, 2015.

The right to earn a livelihood
49. In addition to the order of certiorari the trial judge granted a declaration that the Minister’s decision results in a disproportionate interference with the respondent’s constitutional rights protected under Article 40.1 and/or 40.3 and/or 43 of the Constitution.

50. It appears from the judgment that the primary right protected by the Constitution considered by the trial judge was the right to earn a livelihood. The appellant does not dispute the summary of the relevant principles which emerge from the case law set out at para. 18 of the judgment of the trial judge. However, it is submitted that the trial judge erred in his application of those principles to the facts herein. It is submitted that the decision of the Minister does not even preclude the respondent from practising as a barrister, but rather precludes him from acting as a criminal defence lawyer or in the conduct of an appeal for those to whom a legal aid certificate has been granted. It is well established that the unspecified constitutional right to earn a livelihood protected by Article 40.3 of the Constitution does not extend to a right to earn a livelihood by any particular means or through the exercise of any particular occupation: Nurendale Limited t/a Panda Waste Services v. Dublin County Council [2009] IEHC 588 at para. 193 and Greally v. Minister for Education (No. 2) [1999] 1 I.R. 1, 10. Notwithstanding the evidence before the trial judge of the particular area of specialisation of the respondent whilst in practice at the Bar and his primary source of income at that time, having regard to the evidence adduced as to other sources of paid work for persons who previously held judicial office, I have concluded that the trial judge was in error in concluding that the challenged decision, in accordance with the principles set out in the authorities which he cited could be considered as an interference with the respondent’s right to earn his livelihood protected by Article 40.3 of the Constitution. There are no other rights protected by Article 40.1, 40.3 or 43 of the Constitution which on the evidence before the trial judge could justify the declaration made. Accordingly I would propose that the appeal be allowed against that declaration.

Reasonableness
51. The trial judge also granted a declaration that the Minister’s decision is unreasonable in law. The Minister submits that the trial judge did not consider the legal principles applicable to the question as to whether or not the Minister’s decision was unreasonable in law. The Minister relied upon the well known principles set out in a number of authorities including the judgment of Henchy J. in the State (Keegan and Lysaght) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and Finlay C.J. in O’Keeffe v. An Bord Pleanála [1993] I.R. 39. Those authorities require a person challenging a decision of a public body for want of reasonableness to satisfy the court that the impugned decision is “fundamentally at variance with reason and common sense” or “indefensible for being in the teeth of plain reason and common sense”. The respondent in its submissions correctly points out that the question as to whether or not the Minister’s decision was unreasonable in law only arises if the Minister has a discretion under the 1965 Regulations. The Minister did not purport to exercise a discretion on the facts herein. Rather she took the view that she did not have before her a valid notification from the Bar Council. In those circumstances the declaration of unreasonableness was not well founded and should be set aside.

Issues not decided
52. Having regard to the manner in which this appeal was heard in the absence of the Bar Council; without consideration of the lawfulness or otherwise of rule 5.21 of the Code of Conduct of the Bar of Ireland and without consideration as to whether the respondent is subject in accordance with rule 30 of the rules of King’s Inns to the Code of Conduct of the Bar of Ireland including rule 5.21 when practising as a barrister it is important to emphasise what has not been decided. Those potentially relevant issues include:-

1. Whether the respondent is or was at the date he notified the Bar Council of his willingness to act for persons to whom a legal aid certificate is granted a practising barrister;
2. Whether the respondent as a practising barrister is now subject to the Code of Conduct of the Bar of Ireland including rule 5.21;
3. The lawfulness of rule 5.21 of the Code of Conduct of the Bar of Ireland;
4. If the respondent is a practising barrister, but is not permitted in accordance with the Code of Conduct of the Bar of Ireland to practise in the High Court, Circuit Court or District Court, the entries if any, which the Minister may or should make on the list of counsel maintained by her pursuant to regulation 5 of the 1965 Regulations and of which copies are sent to the Registrars of the relevant courts pursuant to Regulation 5(2).
Final observation
53. The trial judge in the course of his consideration of the claims against the Bar Council and the 1929 decision of Kennedy C.J. in In the matter of the Solicitors (Ireland) Act 1898 and In the matter of an Application by Sir James O’Connor [1930] I.R. 625 made a number of observations which do not arise for decision. However, there is one matter to which I consider I must make reference as it is inconsistent with the Constitution and should not stand. The trial judge at para. 7 of his judgment having referred to the fact that Kennedy C.J. referred to the role of judge as a “sacred office” then stated:-

“Being a judge is undoubtedly a responsible job, and it is a privilege to be given the job, but ultimately it is just a job….”

54. A person appointed as a judge under the Constitution is appointed as the holder of judicial office. He or she is an office holder in the judicial arm of Government. The declaration made by the respondent as required by Article 34.6.1 when appointed a judge included that “I will duly and faithfully and to the best of my knowledge and power execute the office of judge of the High Court without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws”. Further Article 35.2 of the Constitution stipulates “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. It is a fundamental misconception to consider being a judge to be “just a job”.

55. The position of a person who had previously practised as a barrister, has been appointed to judicial office and upon retirement wishes to recommence practice as a barrister remains for consideration.

Relief
56. I propose that the appeal against the order of certiorari quashing the decision of the Minister communicated by letters dated the 29th May, 2015 and the 9th October, 2015, to refuse to include the respondent’s name on the panel of counsel eligible to be paid for services provided under the Criminal (Legal Aid) Regulations 1965 and the related declarations at paragraphs 2 and 3 of the High Court Order be dismissed and that the appeal against the declarations in the order of the High Court as to the unreasonableness of the decision and interference with constitutional rights of the respondent be allowed and the declarations in that respect granted by the High Court vacated.

57. It follows from the order of certiorari and this judgment that the respondent’s entitlement to have his name placed upon the list of counsel maintained pursuant to Regulation 5 of the 1965 Regulations remains to be further considered and decided by the Minister.

Curtin v Dail Eireann, Seanad Eireann & AG

Judgment of the Court delivered on the 9th day of March, 2006 by Murray C.J.

Index

 

Page

1. Introduction 1
2. Facts: Prosecution and Acquittal 1
3. Initiation of steps for removal: correspondence 3
4. Legislative Changes 7
5. Proceedings in the Oireachtas 9
6. Proceedings of the Joint Committee 14
7. Leave to Apply for Judicial Review 18
8. High Court proceedings 20
9. The High Court Judgment 21
10. The Appeal: the Appellant’s case 23
11. Constitutionality of section 3A: submissions 25
12. Direction by Committee: Section 3 1997 Act: submissions 26
13. Article 35.4 of the Constitution 31
14. General principles of constitutional interpretation 34
15. History 38
16. Consideration of Article 35.4.1 45
17. Judicial Independence 45
18. Separation of powers 49
19. Constitutional justice; Fair procedures 58
20. Constitutionality of section 3A of 1997 Act 59
21. Conclusion on interpretation of Article 35.4.1 61
22. Conclusion on section 3 order 72
23. Double jeopardy 79
24. Conclusion 80

– 76 –

– 1 –
In this appeal, the Court is asked to interpret the provisions of Article 35.4.1 of the Constitution regarding the parliamentary procedure for the removal of judges from office. It is one of the few occasions in the annals of legal history that such a proposal has been considered by a court and the first time since the foundation of the State.

Facts: Prosecution and Acquittal
The Appellant was appointed as a judge of the Circuit Court in November 2001.
On 20th May 2002, the President of the District Court issued a warrant for the search of the Appellant’s dwelling house. The warrant recited the information on oath of a Sergeant of An Garda Síochána that there were reasonable grounds for suspecting that evidence, relating to an offence under section 6 of the Child Trafficking and Pornography Act, 1998, to wit “child pornography, computer, computer equipment, computer software, floppy discs and their associated parts,” was to be found at that place.
Section 7(2) of the Act of 1998 requires any entry on a premises in pursuance of a warrant granted under the Act to take place “…within 7 days from the date of the warrant.” The warrant, reflecting that provision, authorised a search “within seven days of the date hereof.” On 27th May 2002, members of An Garda Síochána searched the Appellant’s home. They found and took possession of materials said to be relevant to the allegation mentioned in the warrant.
Section 11 of the Interpretation Act, 1937 provides, so far as relevant:
“The following provisions shall apply and have effect in relation to the construction of every Act of the Oireachtas and of every instrument made wholly or partly under any such Act, that is to say:—
h ) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period;…”

Since the seven-day period specified for the search of the Appellant’s dwelling house was inclusive of the day of issue of the warrant, the search took place one day outside the time allowed. Thus the warrant, at the date of its execution, was spent.
On 26th November 2002, the Appellant was charged by summons with the offence of “possession of child pornography contrary to section 6 of the Child Trafficking and Pornography Act, 1998.” The particulars of the offence were that the Appellant “on 27th May 2002 at [his home] did knowingly have in [his] possession child pornography.” He was sent forward for trial on indictment to the Circuit Court.
The Appellant pleaded not guilty on arraignment at the Circuit Court in Tralee on 20th April 2004. Following legal submissions, the trial judge, His Honour Judge Carroll Moran, ruled that the materials seized from the Appellant’s home on foot of the search warrant were not admissible in evidence. He ruled as follows:
“There is no doubt that on a proper interpretation of s.7 of the Child Trafficking and Pornography Act, 1998, having regard to s.11(h) of the Interpretation Act, 1937, in the present case, the day on which the search warrant was issued was to be included in the reckoning and since the warrant was issued on the 20th May 2002, it expired on midnight of the day ending on the 26th May 2002. Accordingly, it was spent when the Garda Síochána purported to rely on it in their search of the accused’s home on the 27th May 2002.”

The learned judge, being bound by the decision of this court in People (Director of Public Prosecutions) v Kenny [1990] 2 I.R. 110, held that “there was a violation of the accused’s constitutional rights committed by acts of the Garda Síochána which were not unintentional or accidental.” He ruled: “…evidence of the search and of what was found in the search is inadmissible and cannot go before the jury.”
There being no other evidence against the Appellant, the learned judge withdrew the case from the jury and the Appellant was found not guilty by direction on 23rd April 2004.

Initiation of steps for removal: correspondence
Within days of his acquittal, the Government initiated correspondence with the Appellant. It is necessary to outline the principal points.
The Secretary General to the Government, on 27th April 2004, wrote to the Appellant conveying the Government’s deep concern at the circumstances surrounding the criminal proceedings described above. The letter referred to the fact that a search of the Appellant’s home and the initiation of a prosecution against him had been considered justified and that counsel for the Director of Public Prosecutions had alleged in open court that images of child pornography had been found on the Appellant’s computer. It also stated that the Appellant’s detailed response had never been recorded. The letter invited the Appellant to record in writing his response to the allegations made against him. It stated:
“Given the importance of the mutual respect due between the institutions of the State, and having regard to the critical importance of public confidence in the judiciary, the Government believes that it is entitled to a full and frank disclosure from you of the information and comments which are sought from you and to be apprised of the full circumstances surrounding the matters referred to.”

The letter drew attention to the provisions of Article 35.4.1 of the Constitution and of The Courts of Justice Act, 1924 enabling the Houses of the Oireachtas to pass a resolution calling for the removal of a Circuit Court judge from office for stated misbehaviour or incapacity. The letter stated that the members of the Government, who could propose such a resolution, would require to be apprised of the information and comments being sought from the Appellant so that they could fairly consider a decision whether to initiate such a resolution.
In a letter of 13th May 2004, the Appellant stated, through his solicitor, that, while it “would not be constitutionally appropriate for him to answer questions asked by or on behalf of the Government……,” he would, “should the Oireachtas, the organ of State mandated by the Constitution with oversight of judicial conduct, see good to make requirements of [him] in due course, ……… respond to that body appropriately.”
The Taoiseach then made a statement in the Dáil. He outlined the intended course of action which is more fully described below. The Appellant’s solicitors wrote to the Taoiseach seeking assurances concerning his right to be heard before any resolutions would be debated or voted upon.
The Secretary General to the Government, on 25th May 2004, sent a letter to the Appellant’s solicitors describing in detail steps that were to be taken leading to the possible removal of the Appellant from office. These steps were to be as follows:

1. Two motions would be proposed in each House of the Oireachtas as follows:
a) a motion calling for the removal of the Appellant from office pursuant to Article 35.4.1 of the Constitution (as applied by section 39 of The Courts of Justice Act, 1924) on grounds of stated misbehaviour;
b) a motion would be introduced proposing the establishment of a Joint Committee of the Houses of the Oireachtas for the purposes of investigating and receiving evidence in relation to matters of public concern specified in the letter and pertaining to the Appellant and for the purpose of according fair procedures; the resolution would define the powers of the Joint Committee, including the power to compel witnesses; the committee would not make any findings of fact or recommendations or express any opinions.
2. The first motion would be adjourned pending the receipt of a report from the Joint Committee.
The Government letter then set out set out the circumstances and matters which the Joint Committee would be required to investigate, which were:

“(a) that the Garda Síochána in August 2001, on receipt of information from Interpol obtained by the United States Postal Inspection Service during a search of premises in Fort Worth, Texas, concerning details of alleged customers of a company offering access to child pornography websites, commenced an operation in relation to persons allegedly so identified from this jurisdiction.
(b) that these details included the names, passwords and credit card and charge card details of certain persons,
(c) that one of the persons from this jurisdiction so named was a Brian Curtin, 35 Ashe Street, Tralee, Co. Kerry, and that subsequent enquiries indicated that this person was Brian Curtin, Judge of the Circuit Court, with a home address of 24 Ard na Li, Tralee, Co Kerry,
(d) that a warrant to search Judge Curtin’s home under section 7 of the Child Trafficking and Pornography Act 1998 issued from the District Court on foot of an application by a member of the Garda Síochána on 20 May 2002,
(e) that Judge Curtin’s home was subsequently searched on foot of the said warrant and that Gardaí took possession of a personal computer and other material during the search,
(f) that an investigation file was submitted to the Director of Public Prosecutions by the Garda authorities in October 2002 and that the Director of Public Prosecutions instructed that Judge Curtin be prosecuted for knowingly having in his possession child pornography contrary to section 6 of the Child Trafficking and Pornography Act, 1998,
(g) that the trial of the said charge commenced on 20 April 2004 at Tralee Circuit Court and that on 23 April 2004 Judge Curtin was found not guilty of that charge without evidence being given in relation to the subject matter of the charge, the Circuit Criminal Court having determined that the aforesaid warrant was spent when executed at the home of the Judge Curtin.”

The scheme thus outlined on behalf of the Government, together with certain legislative changes, was carried into effect and is the subject of the present proceedings.
Legislative Changes
As part of the scheme to enable the Oireachtas to deal with the case of the Appellant, the Government proposed and the Oireachtas passed two pieces of amending legislation which came into force in June 2004.
Firstly, the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 (“the 1997 Act”) was amended by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amendment) Act, 2004 (“the 2004 Act”). The need for this amendment arose from section the 3(4) of the1997 Act. Section 3(1) of the Act authorises a committee of a House of the Oireachtas to “direct in writing any person whose evidence is required by the committee to attend before the committee on a date and at a time and place specified in the direction and there to give evidence and to produce any document in his or her possession or power specified in the direction…” However, section 3(4) of the 1997 Act, before amendment, provided that section 3(1) did not apply to a judge of any of the courts. Thus it could not be employed even in a case involving the possible removal of a judge from office pursuant to Article 35.4.1 of the Constitution. The 2004 Act inserted a new section, section 3A, into the 1997 Act. Section 3A(a) now provides:
“Section 3, in so far as it relates to a committee established for the purposes of, or in connection with, a matter arising under section 4 of Article 35 of the Constitution or pursuant to section 39 of the Courts of Justice Act 1924 or section 20 of the Courts of Justice (District Court) Act 1946, shall, notwithstanding subsection (4) of section 3, apply to a judge of a court that is specified in that subsection and to which judge the matter relates.”
This provision applies, by virtue of paragraph (b) of section 3A, to a case concerning “the behaviour or capacity of a judge whether occurring or first arising before or after” the passing of the Act. In these proceedings, the Appellant claims that section 3A is unconstitutional.
A related amendment was made to the Child Trafficking and Pornography Act, 1998 (“the 1998 Act”). The Child Trafficking and Pornography (Amendment) Act, 2004 was designed to exempt any proceedings of the Oireachtas from criminality by reason of the possession or distribution of child pornography, which had been made criminal by the 1998 Act. Section 1 of that Act inserts a new section 13 into the 1998 Act as follows:
‘‘13.—Nothing in this Act prevents—
(a) the giving of or compliance with a direction under section 3 of the
Committees of the Houses of the Oireachtas (Compellability, Privileges
and Immunities of Witnesses) Act 1997, or
(b) the possession, distribution, printing, publication or showing by either
House of the Oireachtas, a committee (within the meaning of that Act) or
any person of child pornography for the purposes of, or in connection
with, the performance of any function conferred by the Constitution or
by law on those Houses or conferred by a resolution of either of those
Houses or resolutions of both of them on such a committee.’’

It is not alleged that this amendment to the 1998 Act was unconstitutional. However, it is relevant to the interpretation of section 3A and to the power of the Joint Committee to give a direction to the Appellant pursuant to section 3 of the 1997 Act, which is one of the issues to be decided.

Proceedings in the Oireachtas
On 2nd June 2004, the parliamentary procedures intended to give effect to the proposals mentioned above were initiated in both Houses of the Oireachtas.
Firstly, following on a recommendation of its Committee on Procedure and Privileges, Dáil Éireann, on 2nd June 2004, adopted an additional Standard Order Number 63A setting out special procedures governing any motion for the removal of a Judge pursuant to the applicable constitutional or statutory provisions. The essence of the new Dáil Standing Order 63A, so far as material, may be summarised as follows:
Any such motion must “state the matters upon which it is contended by the proposer of the said motion that the Judge who is the subject matter of the motion should be removed for stated misbehaviour or that he or she is incapacitated.”
Where such a motion is put on the order paper, “the Dáil may either reject the said motion, or on a motion made to adjourn appoint a Select Committee to take evidence in respect of the aforesaid Article 35.4.1 motion, provided that the Select Committee shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same.” (S.O. 63A(2))
Where the Dáil does not appoint a Select Committee within five days, the “motion shall lapse.”
The following paragraphs govern the procedures of the Select Committee:
“(5) The Select Committee shall at all times have due regard to the constitutional principles of basic fairness of procedures and the requirements of natural and constitutional justice.
(6) The Select Committee shall take all steps to ensure that an appropriate record is taken of its proceedings.
(7) The proceedings of the Select Committee shall be held in private, save insofar as otherwise directed by the Committee following a request in that behalf by a judge who is the subject of an Article 35.4.1 motion.
(8) Following the completion of its proceedings, the Select Committee shall furnish a report of those proceedings to the Dáil, together with appropriate transcripts and associated audio-visual material. Provided that the Committee shall first send its report to the Clerk of the Dáil, who shall arrange in the first instance for the report to be circulated to the members of the Dáil and to the Judge who is the subject matter of an Article 34.4.1 motion. Provided further that the Dáil may subsequently order that the report be published and laid before the Dáil.
(9) Following receipt of the said report, the Dáil may by order make provision for the debate on the said Article 35.4.1 motion which shall include:
– due notice of the taking of the debate to be resumed on such part of the Article 35.4.1 motion calling for the removal of the Judge in question;
– due observance by each Member of the constitutional principle of fair procedures;
– the right of the Judge and his or her legal representatives to be heard prior to any vote of the said Article 35.4.1 motion;
– such special rules of procedure as may be deemed appropriate.”
It is also provided by Article 63A that a Select Committee so appointed by the Dáil “shall, with the concurrence of Seanad Éireann, be joined by order of the Dáil with a similar Select Committee of that House appointed to perform its functions in respect of a corresponding Article 35.4.1 motion moved in that House in respect of the same Judge.” The Chairman is to be a member of Dáil Éireann.
A materially identical corresponding Standing Order, numbered 60A, was, mutatis mutandis, adopted by Seanad Éireann on the same day, 2nd June 2004.
Secondly, a resolution for the removal of the Appellant pursuant to Article 35.4.1 of the Constitution and section 39 of the Courts of Justice Act, 1924 was proposed in each House. Each resolution recited in full the matters, which had been listed at paragraphs (a) to (g), quoted above, from the Government letter of 25th May. The stated misbehaviour was, in each resolution, described as:
“… being his conduct in and in relation to subscribing to, accessing and use of websites containing child pornographic images and thereby rendering himself unsuitable to exercise the office of a Judge of the Circuit Court.”
The resolutions, having been proposed, were adjourned in accordance with the pre-ordained procedure.
On 3rd June 2004, each House of the Oireachtas adopted a resolution appointing a Select Committee with four members “to be joined with a Select Committee to be appointed by [the other House]. Those resolutions recite at length: paragraphs (a) to (g) of the letter of 25th May 2004 already quoted; the correspondence that had passed between the Secretary General to the Government, on the one hand, and the Appellant and his solicitors, on the other; particularly, the Appellant’s undertaking to respond to requirements of the Oireachtas (his solicitors’ letter of 13th May); the fact that a resolution pursuant to Article 35.4.1 had been proposed. Each of those resolutions also contains the following:
“4. Considering the exceptional circumstances thus arising, having regard to the need for the public to have complete confidence in the judiciary and in the integrity of the administration of justice, conscious of the fact that the said matters do not relate to any exercise of a judicial function by Judge Curtin, and mindful of the status and importance of the principle of judicial independence.

5. [omissis]

6. Conscious of the responsibility and duty of the Houses, prior to the members of the Oireachtas forming a judgment as to whether they wish to vote in favour of or against such a motion, to cause an investigation to take place into the said matters so as to gather and ascertain the facts of and evidence relating to same and to provide the opportunity to Judge Curtin to state and present his case to the said Houses.
7. Mindful of Judge Curtin’s entitlement to due process and fair procedures and noting that this House shall accord fair procedures and due process to Judge Curtin and in particular an opportunity to advance evidence to the Select Committee herein established and make such submissions as he considers appropriate to the Select Committee and thereafter to this House and moreover shall provide for the exercise of all rights conferred on him by law to defend and protect his position and good name any other right or entitlement enjoyed by him at law.”
When the Select Committees are joined in accordance with those resolutions and with Standing Orders, the Joint Committee has eight members. The Chairman is Deputy Denis O’Donovan, who is the third-named Respondent.

Proceedings of the Joint Committee
The Joint Committee sat on 15th June 2004. It notified the Appellant by letter of 16th June that it intended to seek the consent of the Joint Sub-Committee on Compellability of the Committees on Procedure and Privileges of the two Houses for it, the Joint Committee, to make directions pursuant to section 3 of the 1997 Act. That Act had, as already stated, been amended by the 2004 Act, by the insertion of a new section 3A specifically designed to provide for a direction in the case of a judge who is the subject of an investigation in the context of a resolution pursuant to Article 35.4.1 or section 39 of The Courts of Justice Act, 1924.
On 29th June, that Joint Sub-Committee gave its consent to the Joint Committee to “make any or all directions within the meaning of section 3(1) of the 1997 Act in respect of persons or matters generally for the purpose or purposes of carrying out any or all of the functions of the Joint Committee as set out in ……” the relevant Orders of the two Houses.
By a letter of 30th June 2004, the Chairman of the Joint Committee reminded the Appellant of the letter of 13th May in which his solicitors had expressed his willingness to “respond appropriately” to the Oireachtas. The Chairman asked the Appellant to provide an explanation of the matters which had led to the application on 20th May 2002 for a search warrant of his home and, in particular, to address “the allegation that [he] subscribed to, accessed or used websites containing child pornographic images and, if [he] did so, [to] provide details of the nature and circumstances of such conduct.” Further, the Chairman requested that the Appellant “voluntarily submit to the Committee” material stated to be “currently in [his] power or possession …… for the purposes of technical examination.” The letter then listed a wide range of computers and associated materials of possible relevance to the allegation of possession of child pornography. It also mentioned the possibility that it would make an order for production of these materials pursuant to its powers under the 1997 Act as amended.
On 30th June, the Chairman also wrote to the Commissioner of An Garda Síochána stating that the Joint Committee was aware that the Garda Síochána had, in execution of a search warrant relating to the Appellant’s home pursuant to section 7 of the 1998 Act, taken possession of a personal computer and other material. He asked the Commissioner that this material remain in the possession of An Garda Síochána, be retained in safe and secure storage and that no step be taken which might in any way alter the state of that material. The Commissioner replied in writing that the material would “remain in Garda safekeeping and will be so retained until otherwise directed in accordance with law.” The Appellant says that he was unaware of the correspondence with the Garda Commissioner until he learned of it at a sitting of the Joint Committee on 25th November 2004.
There was further correspondence concerning the Appellant’s state of health and fitness to appear before the Joint Committee, which is not material to the present appeal. When appearing before the Joint Committee, counsel for the Appellant at all times claimed to be doing so without prejudice to his right to contest the constitutional and legal validity of the entire process.
By a letter to which the Appellant attaches considerable importance, dated 20th July 2004, the Appellant’s solicitors conveyed to the Joint Committee what, in written submissions to this Court, is described as the Appellant’s “defence”. It is said that this defence was also conveyed to the Joint Committee at one of its private hearings on 24th August 2004. The first point made in response to the Committee’s letter of 30th June 2004 is that the evidence which was to be used against him in the Circuit Court was obtained in conscious and deliberate breach of the Appellant’s constitutional rights, that the Oireachtas was bound by the law of the land and that the evidence was inadmissible. The letter stated that the Appellant was not at that stage prepared to consent to the release to the Joint Committee of the materials taken from his residence. Secondly, and more in the way of conveying to the Joint Committee a substantive explanation or “defence” to the charge of misbehaviour, the letter stated that the Appellant “at no time ha[d] knowingly or willingly subscribed to, accessed or attempted to access or used websites containing child pornographic images.” It further stated:
“In 1999 our client was under severe stress and was abusing alcohol. In such condition he sought access to adult pornography. At no time did he knowingly seek to access child pornography.”

The letter claimed that computers are vulnerable to invasion by third parties wishing to deposit unwanted material. It stated that there was reason to believe that the Appellant’s computer had been manipulated in the manner suggested and specifically that viruses of a type known as “Trojan Horses” had been detected on his computer by the Garda Síochána, that their presence had been confirmed by an expert on behalf of the Appellant, and that these are capable of downloading child pornographic images without the owner’s consent.
This correspondence was, of course, confidential and the hearings of the Joint Committee took place in private. However, the letter of 20th July was exhibited in an affidavit sworn in the present Judicial Review proceedings. Those proceedings have, both in the High Court and in this Court, been heard in open court. Furthermore, counsel for the Appellant drew the attention of this Court to the letter for the purpose of establishing that the Appellant had proffered a defence and explanation to the Joint Committee.
On 25th November 2004, the Joint Committee heard submissions from its own counsel, who applied for a direction pursuant to section 3 of the 1997 Act, directing the Appellant to deliver up to the Joint Committee the computer and associated materials seized from him by the members of An Garda Síochána. On 30th November, the Joint Committee made the order sought. That order (“the section 3 direction”), as expressed in a letter from the Chairman dated 1st December 2004 is in the following terms:
“NOW TAKE NOTICE that you are directed pursuant to section 3(1)(c) of the 1997 Act to produce to the Committee within 21 days from the date of service of this Direction all documents and things (including a personal computer and its hard drive) seized from your house at 24 Ard Na Li, Oakpark, Tralee, Co. Kerry by members of An Garda Síochána in May, 2004.”
Shortly after, counsel to the Joint Committee gave notice of an intention to seek a further direction, relating to the Appellant’s financial records. At the subsequent hearing of the Joint Committee in December 2004, counsel for the Appellant informed the Joint Committee that he proposed to apply to the High Court for Judicial Review of the entire procedure including the validity of certain statutory provisions. The Joint Committee adjourned its proceedings on 15th December in order to facilitate the making of the application.

Leave to Apply for Judicial Review
Smyth J on 21st December 2004 granted leave to the Appellant to apply for Judicial Review in respect of:
· The procedures of the Joint Committee, including the Standing Orders;
· The constitutionality of section 3A of the 1997 Act as amended by the 2004 Act;
· The section 3 direction ordering the Appellant to produce to it the computer and other materials seized by an Garda Síochána pursuant to the search warrant.

The first issue concerns the constitutionality of the procedures adopted by the Houses of the Oireachtas in the exercise of their powers under Article 35.4.1 of the Constitution. Leave was granted on a large number of grounds, not all of them consistent, many of which have not subsequently been pursued. It is sufficient at this point to mention the broad categories of grounds advanced, which were as follows:

1. Articles 63A and 60A of the Standing Orders as adopted respectively by the Houses of the Oireachtas were unlawful and contrary to the Constitution, because Article 35.4.1 refers to “stated misbehaviour” specified and proved and the Houses have no power to prefer or investigate such a charge;
2. Alternatively, if the Houses have such a power, the same Articles are unlawful and contrary to the Constitution because any such investigation must involve a process of adjudication on the charge of stated misbehaviour prior to the debate on or passing of the resolutions.
One of the grounds of challenge to the powers of the Houses of the Oireachtas was that they could not investigate a matter in respect of which the Appellant had already been acquitted by a Court.
The Appellant claimed that section 3A of the 1997 Act (as inserted by the 2004 Act) was repugnant to the Constitution and invalid on the ground that, by removing from the legislation as passed in 1997 the provision that the powers of an Oireachtas committee to make directions did not apply to judges, the Act impermissibly encroached on the independence of the judiciary as enshrined in Article 35.2 of the Constitution.
The Appellant claimed that the direction made by the Joint Committee pursuant to section 3 of the 1997 Act as amended was invalid, as the personal computer and hard drive mentioned were not at any relevant time in his possession and that the direction was an impermissible device designed to circumvent the rights of the Appellant and the obligation of the Joint Committee to vindicate and protect his constitutional rights.
It will be apparent from this brief summary that, while the application for judicial review constitutes a profound and far-reaching challenge to the power of the Houses of the Oireachtas to investigate the Appellant’s behaviour and to debate and pass the resolutions in accordance with the procedures proposed, the Appellant does not contest the power of the Oireachtas to remove a judge from office. The grounds do not claim that the matters alleged against the Appellant in the resolutions were incapable of constituting “stated misbehaviour” within the meaning of Article 35.4.1 of the Constitution.

High Court proceedings
The application for judicial review was heard by Smyth J, who delivered a detailed and considered judgment on 3rd May 2005.
It suffices to mention briefly the submissions of the Appellant before the High Court. These submissions have been significantly modified on appeal. The principal contention of the Appellant before the High Court was that the Houses could not, in accordance with the Constitution, debate and pass any such resolutions as had been proposed unless the Appellant had previously had the benefit of a form of trial on the charge of misbehaviour alleged. Article 35.4.1 had to be interpreted in the light of the Constitution as a whole and, in particular, by reference to the obligation of the Houses to protect and vindicate the personal rights of the Appellant. The Houses would be administering justice for the limited purpose of determining the charge. Consequently, the charge would have to have been proved, following a trial involving the determination and evaluation of evidence in accordance with appropriate standards before a relevant moving member would be entitled to put down such a resolution for debate.
In the light of these submissions, it was submitted that the procedures envisaged under Standing Orders 63A and 60A respectively were fundamentally misconceived.
The Appellant presented an elaborate scheme for the interpretation of Article 35.4.1 There should be implied in the Article, as in its predecessor, Article 68 of the Constitution of Saorstát Éireann, the procedure followed in the British Parliament since the Act of Settlement of 1701. The charge should, on the model provided by Article 12.10 of the Constitution for the impeachment of the President, be preferred by one House and tried by the other. It was not permissible to delegate the determination of the charge to a joint committee. Furthermore, it was submitted that the proposed procedures would, in many respects, constitute a breach of the Appellant’s right to fair procedures.
Moreover, and, in effect by way of an alternative to the claim that prior adjudication was essential, the Appellant complained of the proposal, contained in the Standing Orders, that the Joint Committee should “make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same.” Thus, there is no mechanism for the resolution of conflicts of evidence, or for assessing the weight, relevance or admissibility of evidence, all of these being necessary prior to any debate on the resolution. The result is that the elected members of both Houses will receive all of the evidence without any evaluation, guidance or determination.

The High Court Judgment
Smyth J rejected the historical interpretation proposed on behalf of the Appellant. It was “fundamentally at variance with both a literal and harmonious interpretation of the Constitution,” which he was required to adopt. He cited People (Director of Public Prosecutions) v O’Shea [1982] I.R. 384; Tormey v Ireland [1985] I.R. 289; Riordan v An Tánaiste [1997] 3 I.R. 502; Sinnott v Minister for Education and others [2001] 2 IR 545; People (Director of Public Prosecutions) v MS [2003] 1 IR 606. The previous practice and custom of the British Parliament was not embraced by either Article 73 of the Constitution of Saorstát Éireann or Article 50 of the Constitution. The Houses of the Oireachtas do not have either the functions or the power of a court, as did the former Imperial Parliament. The learned trial Judge cited, inter alia, Melling v MacMathghamhna [1962] I.R. 1; Maguire v Ardagh [2002] 1 IR 385. The power of removal of judges was expressly conferred by the Constitution on the Houses of the Oireachtas. These constitutional provisions are different and distinct from those concerning the impeachment of the President.
Smyth J rejected the argument based on double jeopardy. He held, citing Mooney v An Post [1998] 4 I.R. 288, that the investigation of alleged “stated misbehaviour” was a constitutional function of the Oireachtas designed to protect public confidence in the judiciary.
Smyth J rejected the complaint that it was impermissible to appoint a committee to gather evidence for the Houses of the Oireachtas as proposed, citing, in particular, Nixon v United States (1933) 506 U.S. 224, 122 L Ed. 3d1, 113 S. Ct. 732. When all the evidence has been gathered and placed before the members of the two Houses, the Appellant will there be entitled to appear in person and by counsel. Article 15.10 of the Constitution provides: “Each House shall make its own rules and standing orders…” The learned judge also reviewed at length the position of the judges in the constitutional scheme. Judicial independence is guaranteed by the Constitution, not for the protection of the privileges of judges as individuals, but because the administration of justice is required under the Constitution to be independent. He cited O’Byrne v Minister for Finance [1959] I.R. 1. Thus the Oireachtas, when considering a resolution for the removal of a judge from office, is concerned essentially with whether the judge is a person in whom the public can have confidence in submitting to him or her their disputes about their lives, liberties and interests.
In response to the Appellant’s complaints of lack of fairness of procedures, Smyth J held that a presumption of constitutionality applied to the motions, Standing Orders and procedures of the Houses of the Oireachtas (Goodman International v Hamilton and others [1992] 2 I.R. 542.) and that, accordingly, the proceedings, procedures discretions and adjudications which are permitted will accord with and respect the constitutional rights of the Appellant. He also noted the several provisions made for the Appellant to appear in person and by counsel before the Joint Committee and the several Houses. He did not consider that the Appellant’s constitutional rights were compromised by the procedures which had been set up.

The Appeal: the Appellant’s case
The Appellant’s case on appeal has, from the outset, been presented on a narrower basis. He has not contested the High Court rejection of the argument that Article 35.4.1 should be interpreted in the light of the former British parliamentary procedure or of the special provisions for impeachment of the President pursuant to Article 12.10 of the Constitution. It is no longer claimed that the Houses must adopt a procedure analogous with impeachment as historically applied in the British parliament or as ordained by Article 12.10 of the Constitution. Nor has the Appellant persisted in the argument based on double jeopardy.
The principal issue on the appeal concerning the interpretation of Article 35.4.1 relates to the provisions of the Standing Orders of the two Houses. It concerns principally the evidence-gathering powers of the Joint Committee and the subsequent consideration of that evidence by the two Houses.
The Appellant’s central claim is that the power of the Dáil and the Seanad under Article 35.4.1 of the Constitution to pass resolutions calling for the removal of a judge for stated misbehaviour or incapacity can be exercised only when the allegation in question has been proved by a process of adjudication or trial, whether that process be external or internal to the Houses. The Appellant’s first formulation of this contention was that a resolution for the removal of a judge could not be introduced unless the misbehaviour alleged had been previously proved in some appropriate forum. While this contention appeared in the written submissions filed in this Court on behalf of the Appellant, and was not expressly abandoned at the hearing, it was not significantly developed or pressed in oral argument. The vital aspect of the argument was that the Houses were not entitled themselves to debate and pass a resolution so introduced unless they were satisfied that the allegation had been proved. Thus, some body or forum, internal or external to the House, must first adjudicate on the truth of allegation. Although such a body would adjudicate, its decision, would not, on the other hand, be final and certainly not binding on the Houses when considering the resolutions.
It is common case that the Standing Orders do not permit the Joint Committee to perform that role. Thus, the principal question for decision is whether the procedures which the Standing Orders require the Joint Committee to follow are permitted by the Constitution and, specifically, Article 35.4.1. The question may be posed conversely: is each House obliged by the Constitution to ensure that the misbehaviour alleged against the judge be proved and established as a matter of fact prior to embarking on debate of the resolution?
Mr. John Rogers, Senior Counsel, for the Appellant, relied on the principle of judicial independence ordained by the Constitution, to which, he submitted, the learned trial Judge attached insufficient weight. That principle forms part of the scheme of separation of powers and can be seen, in particular, in the several provisions of Article 35 of the Constitution, not merely Article 35.4.1. The procedures proposed are, it is claimed, fundamentally deficient principally because the Standing Orders provide that the Joint Committee “shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same.” Thus the debate in the Houses will be conducted on the basis of an unedited pack of materials, which inevitably will contain evidence which conflicts on key points, issues of assessment of credibility and issues of reliance on materials which may be more prejudicial than probative. All of this material will, as Mr. Rogers put it, be placed before the Houses “in its abundance.” Mr. Rogers attached particular importance to the need for assessment of expert evidence regarding the presence and significance of “Trojans” on the Appellant’s computer. Each member of each House will be required to assess conflicts of expert and other evidence including the credibility of witnesses. Mr. Rogers contended that, under the procedure envisaged, the Houses of the Oireachtas would not be allowed to receive any further evidence. The debate on the resolutions in the Houses could not include the taking of evidence, because that would not be a debate.
Mr. Rogers submitted that, before a resolution for the removal of a judge can be validly passed, a trial must take place in which there is a determination of whether the judge has, in fact, committed the acts alleged to constitute misbehaviour. There should, in effect, be a two-stage process. Firstly, whether the alleged acts took place must be determined. Then the question of whether those acts amount to misbehaviour can be left to each House.

Constitutionality of section 3A: submissions
Mr. Rogers submitted that section 3A of the 1997 Act as introduced by the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amendment) Act, 2004 was repugnant to the Constitution. The Appellant seeks a declaration pursuant to Article 15.4 of the Constitution that the section is invalid having regard to the Constitution.
That section, it was submitted, involves an impermissible encroachment on the independence of the judiciary enshrined in Article 35.2 of the Constitution and a violation of the doctrine of separation of powers. It authorises a judge to be compelled to give evidence in the context of a resolution proposed pursuant to Article 35.4.1 of the Constitution, which can be done on the basis of a mere allegation. Thus it permits the Oireachtas to require a judge to incriminate himself. It may also be used to compel a judge to divulge information concerning his judicial functions. Mr. Rogers accepted, however, in the course of argument, that a person, including a judge, might be compelled to give answers in the course of civil proceedings which might tend to incriminate him.
Mr. Donal O’Donnell, Senior Counsel for the Attorney General, submitted that it is necessary for the purposes of Article 35.4.1 that the Joint Committee have a power to call a judge to give evidence. The Respondents also point to a number safeguards which are built into the legislation. A committee may only direct a person to give evidence or to produce a document which is relevant to its proceedings (section 4(1)). Where a person challenges the relevancy of a direction, the matter is referred to the Chairman of the House in question, from whose decision there is an appeal to the High Court. Pursuant to section 11(1), a witness before a Committee has the same privilege as a witness before the High Court. Disputed claims of privilege are to be determined by the High Court (see section 6).
Furthermore, the Respondents rely on the presumption of constitutionality and the presumption that the powers of the Houses of the Oireachtas will be exercised constitutionally. The exercise of the power to remove a judge from office cannot per se constitute an infringement of Article 35.2 of the Constitution, which stipulates that judges are “subject only to this Constitution and the law.”

Direction by Committee: Section 3 1997 Act: submissions
The Appellant obtained leave to apply for judicial review, pursuant to the order of Smyth J dated 21st December 2004, of the direction made by the Committee on 1st December, 2004 pursuant to section 3(1)(c) of the 1997 Act, requiring him “to produce to the Committee all documents and things (including a personal computer and its hard drive) [“computer materials”] seized from [his] house…… by members of An Garda Síochána in May 2004.”
As is clear from the summary of facts set out earlier in this judgment the computer materials had remained in the physical possession of the Garda Síochána following the termination of the criminal trial and the Appellant had not sought their return.
The Appellant advanced his case in the High Court on three main grounds:

1. That the direction represented an infringement of his constitutional rights, because the materials in the possession of the Garda Síochána constituted the fruits of an unconstitutional search of his house and seizure and that the direction was a colourable device designed to circumvent his constitutional rights;
2. That the materials were not, in law or in fact, in his possession or power;
3. That the direction represented an invasion of his privilege against self-incrimination.
The learned trial judge rejected all these arguments in a fully reasoned judgment. The first argument can be called the exclusionary rule. Smyth J observed that the Appellant’s rights to the return of his property had not been set at naught. Insofar as the Appellant relied on knowledge of what was on the computer materials, there was no evidence that the members of the Committee had any such knowledge. The invalidity in the execution of the warrant did not affect the process for the Appellant’s removal from office. It was premature to object to the admissibility of the evidence. That would be a matter for the Committee to rule on. In any event, he believed that there were extraordinary excusatory circumstances connected with the power of the houses of the Oireachtas pursuant to Article 35.4.1 of the Constitution which would justify the admission of the evidence. He also rejected the contention that the computer materials were not in the possession or power of the Appellant. He was the legal owner of it and entitled to claim it. He had not enforced that right. He also held that the direction did not infringe his privilege against self-incrimination. This could not happen merely by virtue of production of the computer. He drew a distinction between a criminal trial and the work of the Committee. The constitutional object of maintaining public confidence in the judiciary justified the admission of the evidence seized by the Garda Síochána.
The Appellant, in his appeal, has concentrated on the first two issues raised in the High Court. Though he has appealed against the refusal of his claim on the grounds of self-incrimination, it has not figured largely in the arguments before this Court.
The Appellant says that the exclusionary rule requires the Court to rule that the Committee should not have the power to obtain the computer materials from him. They are his property, seized from him by means of an unlawful and unconstitutional search of his dwelling house in violation of his rights pursuant to Article 40, section 5 of the Constitution. Article 40, section 3 of the Constitution requires the Courts to defend and vindicate those rights. He relies particularly on the dictum of Walsh J in People v O’Brien [1965] I.R. 142 at 170 that:
“The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril.”

It is constitutionally impermissible, the Appellant submits, for any organ of state to rely on the fruits of deliberate and conscious violation of the constitutional rights of a citizen. The direction pursuant to section 3 was a mere device to avoid having to seek the computer materials directly from the Garda Síochána. The amending legislation was a legislative attempt to circumvent the constitutional rights of the Appellant. Vindication of the Appellant’s rights requires more that mere return of the unconstitutionally seized property. Use of unconstitutionally obtained materials includes knowledge obtained from the unconstitutional action. He relies particularly on the decision of this Court in State (Trimbole) v Governor of Mountjoy Prison [1985] I.R. 550. In that case, the Court held that the arrest of Mr. Trimbole pursuant to section 30 of the Offences against the State Act, 1939 was a ruse or colourable device to detain him pending the coming into force of an extradition treaty with Australia. Even his rearrest on foot of a warrant was held to have been unconstitutional. He cites passages from the judgments of Finlay C.J. and McCarthy J. The Appellant emphasises that he has at no stage sought to repossess the computer materials and accepts that, if he had retaken physical possession, there might be no constitutional objection to the direction.
However, the Appellant claims that a direction under section 3(1)(c) can be applied only in relation to a thing “in his possession or power.” For that purpose, he must have “an enforceable legal right,” as held in Bula Limited v Tara Mines Limited [1994] 1 I.L.R.M. 111, to the thing. By virtue of the fact that the computer contains images of child pornography as defined in the Child Trafficking and Pornography Act, 1998, he could not legally claim to possess it. He counters the suggestion that it could be lawful by virtue of the amendment of that Act, already described, by section 13 of the Child Trafficking and Pornography (Amendment) Act, 2004, by an argument based on alleged circularity. If, as he claims, he could not lawfully claim possession of the computer materials, that was the position which pertained immediately before the making of the order. Hence, the Committee could not make the order, because at the time the Appellant had no enforceable right to possession of the computer.
Counsel for the Respondents, respectively for the Houses of the Oireachtas and for Ireland and the Attorney General, adopted a largely similar stance in relation to the Appellant’s arguments. They submitted that the Committee is exercising its own legal power to seek material from the Appellant himself, not from the Garda Síochána. This has no relationship with the cases concerning the exclusionary rule or the notion of “colourable device.”
The Respondents submit that the flaw in the Appellant’s argument is that the exclusionary rule does not prevent the use or admission of material which can be introduced without reliance on the illegality. In that case, there is no connection between the use of the evidence and the prior unconstitutionality. The computer materials sought here will be obtained under the section 3 order through a lawful process entailing no violation of any constitutional interest. The persons seeking access to the computer materials are not those responsible for the invalid search. The exclusionary rule is concerned with the admissibility of evidence unconstitutionally obtained from a citizen at the criminal trial of that citizen. It does not state that it is inadmissible for all time and in all contexts. The Respondents cited People (Attorney General) v O’Brien, cited above; People (Director of Public Prosecutions) v Kenny [1990] 2 I.R. 110; Lynch v Attorney General [2004] 1 ILRM 129, People (Director of Public Prosecutions) v Cooney [1997] I.R. 129; Director of Public Prosecutions v Buck [2002] 2 IR 268.
Knowledge that the Appellant possessed a computer and that it was relevant to whether he possessed child pornography existed quite independently of the execution of the search warrant. The order was made on the basis of the detailed terms of reference of the Committee, some parts of which refer to alleged events pre-dating the execution of the search warrant as well as on matters asserted on behalf of the Appellant himself in correspondence and oral submissions to the Committee, during which he claimed that there were in fact images of child pornography, though unwanted by him, on his computer.
Finally, the Respondent relied on section 13 of the Child Trafficking and Pornography (Amendment) Act, 1998, as inserted by the Act of 2004, to validate the direction made pursuant to section 3 of the 1997 Act.

Article 35.4.1 of the Constitution
Article 35 of the Constitution provides, in relevant part:
“4.1° A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or
incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.
2° The Taoiseach shall duly notify the President of any such resolutions passed by Dáil Éireann and by Seanad Éireann, and shall send him a copy of every such resolution certified by the Chairman of the House of the Oireachtas by which it shall have been passed.
3° Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his hand and Seal, remove from office the judge to whom they relate.”

The present appeal has been concerned exclusively with the provisions of subsection 1. The removal of a judge from office is attended, not only by the decisive intervention of both Houses of the Oireachtas, but by subsequent solemn implementing acts of the Taoiseach and the President. These ensure that the condemned judge is stripped of his office.
Article 68 of the former Constitution of Saorstát Éireann corresponds with Article 35 of the Constitution. That Article contains, with other provisions concerning the judiciary, the following:
“The judges of the Supreme Court and of the High Court shall not be removed except for stated misbehaviour or incapacity, and then only by resolutions passed by both Dáil Éireann and Seanad Éireann.”
The language of Article 35.4.1 is, for practical purposes, identical with that of the relevant part of Article 68 of the earlier Constitution. The later provision, however, requires that the resolution “call for” the removal of the judge.
The Appellant being a judge of the Circuit Court, section 39 of The Courts of Justice, 1924 applies to his case. It provides:
“The Circuit Judges shall hold office by the same tenure as the Judges of the High Court and the Supreme Court.”
That section remains in force and applies to judges of the Circuit Court established under the present Constitution. Section 48 of the Courts (Supplemental Provisions) Act, 1961 provided, inter alia, that the Act of 1924 applied to the judges of the then newly established Circuit Court, “as if it were enacted in this Act.”
Thus, for all the purposes of the present proceedings, the Appellant is subject to and entitled to the protection of Article 35.4.1 of the Constitution to the same extent as a judge of the High Court or of the Supreme Court. Technically, he is protected by a legislative rather than a constitutional provision. But that is a distinction of no consequence. The legislature has decided to confer on judges of the Circuit Court tenure equivalent to the constitutional protection.
The words of Article 35.41 impose no express restriction on the exercise by the two Houses of the Oireachtas of their power to pass resolutions calling for the removal of judges other then that such resolutions be grounded on “stated misbehaviour or incapacity.” The debate on the appeal has concerned the extent to which, by reference to history, to other provisions of the Constitution, to the independence of the judiciary, to the principle of separation of powers, to the need to respect fair procedures or otherwise, this Court should interpret the Article as requiring the observance of particular procedures, as submitted on behalf of the Appellant. It is necessary to consider these several aspects of the matter in turn.

General principles of constitutional interpretation
This Court has, in a number of its decisions, referred to criteria governing the correct approach to the interpretation of the Constitution. As is to be expected, different interpretative elements are emphasised in individual judgments according to the particular context in which questions arise and the particular types of interpretative problem. Words denoting numbers, places or identified persons admit of no debate. On occasion, there is a narrow question as to the meaning in context of particular words of general import. In the case of O’Shea already cited, the Court was divided on the issue whether a provision for an appeal expressed in general words should be interpreted as allowing a prosecution appeal of an acquittal in a criminal case. On other occasions, broader or more philosophical questions arise, such as the nature of fundamental rights. A correct balance has to be struck between the effect to be given to the literal meaning of particular words and the need to have regard to the terms of the Constitution as a whole. One particularly authoritative statement is that found in the judgment of O’Higgins C.J., speaking for a majority of the Court, in People (Director of Public Prosecutions) v O’Shea [1982] I.R. 384 at page 397:
“The Constitution, as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be looked at as a whole and not merely in parts and, where doubt or ambiguity exists, regard may be had to other provisions of the Constitution and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself. The Constitution brought into existence a new State, subject to its own particular and unique basic law, but absorbing into its jurisprudence such laws as were then in force to the extent to which these conformed with that basic law.”
In his dissenting judgment in that case, Henchy J, at page 426, laid greater emphasis on a broad approach to interpretation:
“Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life’. No single constitutional provision … may be isolated and construed with undeviating literalness.”
The latter passage was cited with approval by Keane C.J. in People (Director of Public Prosecutions) v M.S., cited above at page 619.

Murray J, as he then was, having cited the passage from the judgment of O’Higgins C.J. in his judgment in Sinnott v Minister for Education [2001] 2 IR 545 at page 679, went on to state:
“It is axiomatic that the point of departure in the interpretation of a legal instrument, be it a constitution or otherwise, is the text of that instrument, albeit having regard to the nature of the instrument and in the context of the instrument as a whole.”
The result can be expressed as follows. Where words are found to be plain and unambiguous, the courts must apply them in their literal sense. Where the text is silent or the meaning of words is not totally plain, resort may be had to principles, such as the obligation to respect personal rights, derived from other parts of the Constitution. The historical context of particular language may, in certain cases, be helpful, as explained by O’Higgins C.J. in the passage quoted above. Geoghegan J, when considering the meaning of the term “primary education” in Article 42.4 of the Constitution in his judgment in Sinnott v Minister for Education, cited above, said, at page 718, that it was “important in interpreting any provision of the Constitution to consider what it was intended to mean as of the date that the people approved it.” Hardiman J, at page 688, thought that it was “beyond dispute that the concept of primary education as something which might extend throughout life was entirely outside the contemplation of the framers of the Constitution.”
This is not to say that taking into account the historical context of certain provisions of the Constitution excludes its interpretation in the context of contemporary circumstances. O’Higgins C.J. in The State (Healy) –v- Donoghue [1976] I.R. 325 observed that “… rights given by the Constitution must be considered in accordance with the concepts of prudence justice and charity which may gradually change and develop as society changes and develops and which falls to be interpreted from time to time in accordance with prevailing ideas”. Again in the Sinnott case Murray J. stated “Agreeing as I do with the view that the Constitution is a living document which falls to be interpreted in accordance with contemporary circumstances including prevailing ideas and mores, this does not mean, and I do not think it has ever been suggested, that it can be divorced from its historical context”. Hardiman J referred to general theories of interpretation in the following terms: “Tensions are said to exist between the methods of construction summarised in the use of adjectives such as “historical”, “harmonious” and “purposive”. In my view, much of this debate is otiose, because each of these words connotes an aspect of interpretation which legitimately forms part, but only part, of every exercise in constitutional construction.”
Thus, the natural and usually the logical starting point, in every case, will be the words used. Some of the words in Article 35.4.1 are clear and unambiguous. A judge cannot be removed other than in accordance with Article 35.4.1: both Houses must pass the required resolution; the resolution must call for the judge’s removal. This apparently refers to the resolution as proposed. A resolution of one House alone will not suffice. It is also clear, by necessary implication, that the resolution itself must specify the “misbehaviour or incapacity,” as the case may be, (or indeed, though not relevant in this case, the “incapacity”) which purports to justify the judge’s removal.

Apart from these matters, Article 35.4.1 is silent. It does not define misbehaviour or state whether misbehaviour relates to the performance of judicial duties or may be misbehaviour of a general kind. Article 35.4.1 prescribes no procedures to be followed by the Houses of the Oireachtas. Article 15.11.1, however provides that: “All questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other than the Chairman or presiding member.” In particular, Article 35.4.1 contains no guidance on the power of the Houses to appoint investigating committees or the powers it may delegate to any such committees.
In these circumstances, it is reasonable to consider whether there is any history or background to the enactment of the Constitution capable of elucidating what was in the contemplation of the framers. More particularly, however, it will be necessary to consider the constitutional context of Article 35.4.1. Three elements, in particular, are relevant. They are: firstly, the function and standing of the judiciary in the constitutional scheme and the provisions for protection of that role; secondly, the express power conferred on the Oireachtas by the Article and the correct balance between the exercise of that power and the distribution of powers generally in the Constitution; thirdly, the obligation to respect constitutional principles of fairness and justice in the exercise of that power.

History
The wording of Article 35.4.1 is identical to all intents and purposes with that of Article 68 of the Constitution of Saorstát Éireann, save principally for the addition of an express requirement that the resolution should be one “calling for his [the judge’s] removal.” This strict and exclusive means of removing of judges from office has thus, though not used to date, been in force since the foundation of the State.
The parties have provided the Court with a great deal of potentially useful information about the history throughout the common-law world of provisions governing the removal of judges from office. Ultimately, Article 35.4.1 must be interpreted in its own terms in the constitutional context in which it appears.
There are several special aspects of British constitutional history. The British Parliament enjoyed a number of powers, apart entirely from the remedy of an address from both Houses. The most notable of these was that of impeachment, which involved the exercise of the judicial powers of Parliament in respect of public officers, and whose history is traced back at least to the fourteenth century. Having fallen into disuse for several centuries, it was revived in the reign of James I but has been abandoned since 1805. There were other even more obscure provisions. It is prudent to be aware of their existence principally because their continued existence is clearly excluded by the unambiguous wording of Article 35.4.1 of the Constitution.
The first legislative protection of the tenure of judges in the British constitutional system was enacted by the Act of Settlement of 1701, an Act the principal purpose of which was to settle the royal succession. It represented a reaction to the abuses of the Stuart period, when judges held office at the will and pleasure of the Crown, so that they could be removed (and sometimes were) for pronouncing judgments which did not please the monarch. The Act provided:

“Judges Commissioners be made hold office Quamdiu se bene gesserint [during good behaviour], and their Salaries ascertained and established; but upon the Address of both Houses of Parliament it may be lawful to remove them.”
By an Act of the British Parliament (1 Geo. III, c 23), (1761), this provision became applicable notwithstanding the demise of the king and was extended to Ireland, in 1781, when the Irish Parliament passed a statute (21 and 22 Geo. III, c 50) entitled: “An Act for securing the independency of judges and the impartial administration of justice……” The tenure of the judges was, to continue “in full force during their good behaviour…… ……notwithstanding the demise of the King……” and, as section 3 provided, they might be removed “upon the address of both Houses of Parliament……” That Act was repealed by the Statute Law Revision (Pre-Union Irish Statutes) Act, 1962.
Section 13 of the Supreme Court of Judicature (Ireland) Act, 1877 (40 & 42 Vict. C. 57) (corresponding to the English Act of 1875) provided tenure for judges of the two divisions of the new Supreme Court of Judicature (but not of what the Act called “inferior courts.”) in practically identical terms to that which had existed since 1781 in Ireland:
“Every judge of the High Court of Justice other than the Lord Chancellor, and every ordinary judge of the Court of Appeal shall hold his office for life, subject to a power of removal by Her Majesty on address by both Houses of Parliament.”
This was the immediately previous statutory background to the drafting and adoption of the Constitution of Saorstát Éireann.
In addition, the framers of that Constitution were in a position to and the evidence suggests that they did consult relevant provisions of the Constitutions of what were then called the Dominions. Section 99 of the Constitution (Canada) Act, 1867, an Act of the British Parliament (30 Vict, c.3), provided:
“the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and Houses of Commons.”
Section 72 of the Australian Constitution of 1900 provided:
“The Justices of the High Court and of the other courts created by the Parliament–
…….
ii. Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

……….”

The South Africa Act, 1909, establishing the Union of South Africa, contained a practically identical provision. All prior versions were expressed in permissive terms; in the Australian version this became: “shall not be removed except.” No doubt, the condition of good behaviour had been treated as implicit from 1701, but the Australian and South African versions permitted removal only on “the ground of proved misbehaviour or incapacity.” In Article 68 of the Constitution of Saorstát Éireann, “proved” becomes “stated,” the term retained in Article 35.4.1.
It is generally accepted that the framers of the 1922 Constitution consulted widely among the Constitutions of the common-law countries. Kingsmill Moore J, in his judgment in O’Byrne v Minister for Finance, already cited, having recited much of this history, at page 63 of his judgment said:

“Whereas both the earlier enactments and the American Constitution provide for fixity of tenure during good behaviour, the American Constitution does not contain a prohibition against removal save on an address from both Houses which is to be found in the Constitution of South Africa and in the Constitution of the Commonwealth of Australia, and which is reproduced in the Constitution of the Free State. It is clear that the framers of the Free State Constitution had before them, considered, and adopted this provision, taking it from some source other than the United States Constitution and presumably from one of the Dominion constitutions to which I have referred.”

The only point that can be gleaned from all of this history is that it was considered necessary both in Great Britain, at least since the abandonment of parliamentary trial by impeachment sometime after 1805, and the Dominions to have a resolution of both Houses of Parliament, taking the form of an address to the sovereign or the sovereign’s representative, in order to remove a judge from office. It was implicit rather than explicit that such an address would be grounded on misbehaviour. Ultimately, Article 35.4.1 of the Constitution is expressed in more absolute and clearer terms than any of the preceding enactments. However, the sections themselves offer no direct assistance in the resolution of the very precise procedural issues raised on this appeal.
The Appellant has, of course, to a great extent in the High Court and to a more limited extent in this Court relied on the historic parliamentary practice whereby the Houses of Parliament caused a committee, sometimes a select committee, sometimes a committee of the whole House, to report on the alleged misbehaviour of a judge before debating a resolution. At most, all this establishes is that parliaments have over the centuries resorted to the use of committees to investigate contentious or complex matters.
The case of Sir Jonah Barrington, a judge of the Irish Admiralty Court, is both the most celebrated and the most instructive. It is the only reported case in which a judge has been removed pursuant to an address of both Houses. In 1828, the House of Commons requested the Commissioners of Judicial Inquiry in Ireland to provide a report on the state, particularly the financial state, of the Admiralty Court over which Sir Jonah presided. A report of the commissioners and other documents were laid before the House and referred to a select committee. The select committee, after a full investigation, including hearing the evidence of the judge, reported that he had been “guilty of malversation in office.” Thereafter, there were hearings separately before each House, each of which passed a resolution in the form of an address, which was duly presented to the King, who caused him to be removed from office.
The Senate of the United States of America, prior to 1935, according to a longstanding tradition sat in banc for the conduct of, including the taking of evidence in, impeachment trials. No doubt, this presented no great problem during the early years of the Republic, when the number of senators, being two per state, was necessarily small; there were twenty six members at the beginning. As the number of states and the volume of legislative work grew, it was generally seen as “more than inefficient and inconvenient.” (see Napoleon B. Williams, The Historical and Constitutional Bases of the Senate’s Power to Use Masters or Committees to receive evidence in Impeachment Trials, (1975) 50 NYU Law Review, 512 at 516). In 1935, the Senate adopted “Rule of Procedure and Practice in the Senate when Sitting on Impeachment Trials XI.” That rule authorises the Senate to “appoint a committee of twelve senators to receive evidence and take testimony……” An immediate cause of the adoption of the rule was the high rate of absenteeism of senators at the then recent trial of a judge. (Williams, ibid., page 517). Having regard to the arguments on the present appeal, it is instructive to consider the terms of the obligation of such a committee to report to the full Senate. It reads:
“The committee so appointed shall report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before such committee, and such report shall be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as having been received and taken before the Senate, but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate.”
While Rule XI does not appear in terms to allow a committee to make findings of fact, White J, in his judgment in Nixon v United States 506 US 224, discussed later, spoke of it having a “fact-finding” role.

Consideration of Article 35.4.1
The power of the Houses of the Oireachtas to vote for the removal of a judge from the bench is hugely significant for all branches of government. The prescribed mechanism empowers the legislative organ to pass judgment on the fitness of a member of the judicial organ to continue to hold an office, which itself may supervise the performance of its constitutional tasks by the former. The executive branch, as in the present case, will, in practice, necessarily be involved. It has an obvious constitutional interest both in the independence of the judiciary and in the integrity of the holders of judicial office, and a corresponding interest in seeing that the power is not used irresponsibly. Article 35.4.1 is relevant to the confidence of the people in the performance by government of its constitutional functions and, not least, for the individual judge. It is necessary, when interpreting Article 35.4.1, to consider the implications for each branch of government and for the entire constitutional scheme.

Judicial Independence
Article 6 of the Constitution designates the powers of government as “legislative, executive and judicial” and as deriving, “under God, from the people…” The Constitution prescribes the methods of choosing the persons who exercise those several powers and allocates tasks between the respective constitutionally designated organs. The judicial power is principally described in Article 34.1:
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution……”
Thus, only judges appointed to such courts may administer justice. The importance of the judicial function in the carefully balanced constitutional scheme is underlined by two specific powers expressly assigned to the Courts. Article 34.3.2 provides that “the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution…” Article 26 empowers the President to refer to the Supreme Court any Bill for its “decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or any provision thereof.” These two provisions, and others, highlight the supreme importance of the tasks assigned to the courts by the framers of the Constitution. The courts are required to act as custodians of the Constitution and as such, to act as a check on the actions of the other two arms of government and to ensure that they act in accordance with the rule of law, respect individual constitutionally protected rights and observe the provisions of the Constitution.
It is inherent and essential for the performance of these functions that the independence and integrity of the courts be guaranteed and respected. Hence, Article 35.2 provides:
“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”
Provisions of Article 35, other than Article 35.4, give further effect to this fundamental principle. Article 35.3 provides:
“No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position or emolument.”
Article 35.5 provides:
“The remuneration of a judge shall not be reduced during his continuance in office.”

By these important provisions, the Constitution declares unambiguously the principle that courts and judges are independent of both the government and the legislature. Not content with that declaration, the Constitution gives concrete effect to the principle of judicial independence in the provisions cited, most pointedly in Article 35.4.1 itself. The principle of judicial independence does not exist for the personal or individual benefit of the judges, even if it may have that incidental effect. It is a principle designed to guarantee the right of the people themselves from whom, as Article 6 proclaims, all powers of government are derived, to have justice administered in total independence free from all suspicion of interference, pressure or contamination of any kind. An independent judiciary guarantees that the organs of the State conduct themselves in accordance with the rule of law.
A necessary corollary of judicial independence is that the judges themselves behave in conformity with the highest standards of behaviour both personally and professionally.
The most significant judicial pronouncements on the constitutional notion, as enshrined in the Constitution of Saorstát Éireann, of independence of the judiciary are to be found in the judgments of the former Supreme Court in O’Byrne v Minister for Finance, already cited. The widow of a Supreme Court judge claimed that the imposition of income tax on a judge’s salary contravened the prohibition, contained in Article 68 of the Constitution of Saorstát Éireann, on diminution of a judge’s remuneration during continuance in office. Maguire C.J., speaking for the majority, held, at page 38, that:
“The purpose of the Article is to safeguard the independence of judges. To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack upon his independence.”
In his concurring judgment in the same case, at page 64, Kingsmill Moore J stated:
“I must take into account the history of the legislation, the evil sought to be avoided and the nature of the remedy devised to avoid such evil. All these matters are plain from the titles and preambles to the statutes I have cited. The object was to secure the independence of the judges and the impartial administration of justice. The legislation was for the protection of the people, not for the interests of the judges.” (emphasis added).
While those remarks concerned the diminution of judicial salaries, it cannot be doubted that they are at least equally applicable to the provisions of Article 35.4.1. Judges enjoy a special constitutional protection from removal from office, in common with some other constitutionally designated persons. That protection is not intended to benefit individual persons holding judicial office. As individual human persons, judges are no more deserving of protection than any other office-holder. The constitutional task that they perform requires them to be able authoritatively to resolve disputes between the three organs of government. They must be guaranteed the freedom to decide without fear or favour and, hence, that they be independent of the other branches of government.

Separation of powers
The doctrine of separation of powers, as already indicated, protects the independence of the judiciary. Equally, however, both the legislative and executive branch must be permitted to perform their allotted constitutional functions without improper encroachment from the other branches. The classical and oft-quoted formulation of the doctrine remains that found in the judgment of the Court delivered in Buckley v Attorney General (Sinn Féin Funds) [1950] I.R. 67 by O’Byrne J, stating at page 81:
“Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, and it further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”
The Court considered that principle extensively in its judgments in T.D. v Minister for Education [2001] 4 IR 259. All judgments cited Buckley (save that Murphy J, by agreeing with Keane C.J., did so indirectly). That case concerned orders made by the High Court directing the State to act in vindication of the constitutional rights of a category of disadvantaged children by providing physical accommodation for them. The making of those orders was based on the proposition that the Constitution implied respective rights for individuals and correlative powers of the State and the courts.
This Court, however, held, on appeal, that the orders made by the High Court constituted an invasion of the executive power of the State. The case is, on its facts, sharply distinguishable from the present case, where the debated Article provides that a specified express constitutional function is to be performed exclusively by one organ of the State. Nonetheless, the judgments contain pronouncements of general application. For example, Denham J stated at page 300 of her dissenting judgment:
“In exercising the functions of State it behoves each organ of State to respect the other organs of State and their independence and functions and to act accordingly.”

Murray J, as he then was, stated at page 331:
“……in order to avoid the paramountcy of one organ of State, each must respect the powers and functions of the other organs of State as conferred by the Constitution. Each must exercise its powers within the competence which it is given by that Constitution.”
Hardiman J stated at page 359:

“It is right that the judiciary, within their constitutional sphere, should be quite independent of the legislature and the executive, but it is no less right that these, within their respective constitutional spheres, be independent of the judiciary.”
Those statements are at a level of high generality, whereas more particular considerations are at stake in the present case. The present appeal makes it necessary for this Court for the first time to pronounce on the limits, if any, on the powers conferred on the Houses of the Oireachtas by Article 35.4.1 of the Constitution. To that extent, it may be said to be unique. However, relevant precedent is not wanting. Since shortly after the enactment of the Constitution, the High Court and this Court have had to exercise their constitutionally conferred powers to pronounce on the validity of legislation passed by the Oireachtas. They developed, in that context, the principle of the presumption that such legislation is in accordance with the Constitution. Shortly after the entry into force of the Constitution, in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413, Hanna J. stated at p. 417:-
“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”

This is a presumption universally applied ever since. The Court has explained that the principle “…springs from, and is necessitated by, that respect which one great organ of State owes to another.” (per O’Byrne J in Buckley v Attorney General and another, already cited, at page 80). That presumption and the reasoning underlying it have more recently been held also to apply to resolutions of both Houses of the Oireachtas. In Goodman International Ltd v Mr. Justice Hamilton and others, already cited, Finlay C.J., speaking with the agreement of a majority of the Court, stated, at page 586:
“I am satisfied that the presumption of constitutional validity which has been applied by this Court, in a number of cases, to statutes enacted by the Oireachtas and to bills passed by both Houses of the Oireachtas and referred to this Court by the President pursuant to Article 26, applies with equal force to these resolutions of both Houses of the Oireachtas. It seems to me inescapable that having regard to the fact that the presumption of constitutional validity which attaches to both statutes and bills derives, as the authorities clearly establish, from the respect shown by one organ of State to another, and by the necessary comity between the different organs of State, that it must apply in precisely the same way to a resolution of both Houses of the Oireachtas, even though it does not constitute legislation.”
Hederman and McCarthy JJ did not expressly refer to the presumption but agreed with the result proposed by the Chief Justice. Having recalled the principle of double construction and the presumption that “all proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed…” would also be conducted in accordance with the principles of constitutional justice (citing McDonald v Bord na gCon [1965] I.R. 217 at 239; East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] I.R. 317), Finlay C.J. continued, at page 587:
“In applying this principle to these resolutions and the issues arising in this case, clearly, in so far as the applicants contend for a constitutional invalidity in the resolutions setting up the Inquiry, this Court must presume that the proceedings of the Inquiry and the rulings and conduct of the Inquiry by the Tribunal will be in accordance with constitutional justice.”

The foregoing provides clear authority for the broad proposition that the parliamentary procedures followed to date in respect of the resolutions to remove the Appellant from office must be presumed, by the courts, to be constitutional. This presumption applies in particular to the amended Standing Orders and to the resolutions appointing the Joint Committee adopted in June 2004.
More generally, the Constitution specifically and with all deliberation assigns the power to pass resolutions as provided for in Article 35.4.1 to the Houses of the Oireachtas and to no other body. It is an exclusive power. The words of Keane J, expressed in his judgment, with which a majority of the Court agreed, in Kavanagh v Government of Ireland [1996] 1 I.R. 321 at 363 seem particularly relevant:
“……where the Constitution has unequivocally assigned to either the Government or the Oireachtas a power to be exercised exclusively by them, judicial restraint of an unusual order is called for before the courts intervene. That is also no more than recognition that, while all three organs of State derive their powers from the people, the Government and the Oireachtas are accountable, directly and indirectly, to the people in the electoral process.”
In that case an attempt was made to contest the validity of the Government proclamation of 1972 that the ordinary courts are inadequate to secure the effective administration of justice and preservation of public peace and order.
It is important to any consideration of the use by the Houses of the Oireachtas of their powers to mention Article 15.10 of the Constitution, which, so far as relevant reads:
“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement……”
This Court made brief reference to this constitutional provision in O’Malley v An Ceann Comhairle [1997] 1 I.R. 427, where the Court affirmed a High Court decision refusing to grant leave to apply for judicial review of a decision of the Ceann Comhairle disallowing part of a question put down for answer by a minister. O’Flaherty J (Murphy and Lynch JJ concurring) stated at page 431:
“How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dáil Éireann that it would seem to be inappropriate for the court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the house as to remain within the competence of Dáil Éireann to deal with exclusively, having regard to Article 5, s. 10 of the Constitution.”
The Supreme Court of the United States has had occasion from time to time to consider the corresponding provision of the Constitution of the United States. Article 1, section 5 provides: “Each house may determine the rules of its proceeding……” In United States v Ballin (144 U.S. 321), the Court declined to consider whether an Act of Congress had been validly passed. The following dictum appears in the judgment of the court delivered by Brewer J, at page 324:
“The Constitution empowers each house to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by a rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just.”
In Nixon v United States, cited above, a judge was impeached before the Senate of the United States, having been convicted of making false statements before a federal grand jury in a matter concerning acceptance by him of a bribe. The Senate convicted him on articles of impeachment prepared by the House of Representatives and removed him from office. The Senate had appointed a committee pursuant to its impeachment rules already mentioned. In subsequent proceedings, the judge claimed that the rule authorizing the appointment of the committee violated the Federal Constitution’s impeachment trial clause. The majority of the Supreme Court rejected the former judge’s claim as being non-justiciable. White J, with whom Blackmun J concurred did not agree that the matter was non-justifiable. Unlike the majority, therefore, which did not reach the issue, he considered the challenge to the Senate Rule on its merits. That judgment is of some interest in the present context. Following a historical account which treads some of the ground described earlier in this judgment, White J concluded, at page 22, that the trial clause of the Constitution “was not designed to prevent employment of a fact-finding committee.” He continued:
“In short, textual and historical evidence reveals that the Impeachment Trial Clause was not meant to bind the hands of the Senate beyond establishing a set of minimal procedures. Without identifying the exact contours of these procedures, it is sufficient to say that the Senate’s use of a fact-finding committee under Rule XI is entirely compatible with the Constitution’s command that the Senate “try all impeachments.””

These decisions of the Supreme Court of the United States can have persuasive value only to the extent that they relate to the interpretation of analogous provisions of our Constitution and are consistent with the approach of our courts to issues of interpretation. There is no apparent difference of substance between the power conferred on the Houses of the Oireachtas by Article 15.10 of the Constitution, “to make its own rules and standing orders,” and that of the houses of the US Congress to “determine the rules of its proceeding…” The approach of the US Supreme Court in the two cases cited (in one case, in a minority opinion) is not significantly different from that expressed on behalf of this Court by O’Flaherty J, as already quoted, in O’Malley v An Ceann Comhairle. O’Flaherty J in an obiter dictum, somewhat like Brewer J in Ballin, hinted at possible limits to the deference which the judicial arm owes to the legislative arm of government, when he said, at page 431:
“Yet if, for example, the Government used its majority in the Dáil and Seanad to prevent the Oireachtas holding at least one session per year (Article 15, s. 7); or if the Dáil did not meet within thirty days from the date of a general election (Article 16, s. 4, sub-s. 2) is it to be said that the courts would not have a jurisdiction to intervene? Since the court is not called on to resolve these questions now, it is sufficient to state that the problem posed for resolution here is a different one.”

Constitutional justice; Fair procedures
It is not contested by the Attorney General or by or on behalf of the Houses of Oireachtas that the Appellant, faced with a resolution calling for his removal from the bench for stated misbehaviour, is entitled to full plenitude of the protection of all of the rules of fair procedures guaranteed by the Constitution. The Appellant says that the corollary of the existence of the power to remove a judge from office is that the people have a right not to have judicial independence threatened or undermined through a process which falls short of full respect for the core value of judicial independence.
The Standing Orders of each of the Houses contains, as already seen, an express recognition of these principles as applicable to the Select Committee:
“The Select Committee shall at all times have due regard to the constitutional principles of basic fairness of procedures and the requirements of natural and constitutional justice.”
The resolutions passed on 3rd June 2004 contain substantially similar provisions. In fact, the Appellant has been heard by the Committee through his solicitors and counsel on several occasions and has made no complaint regarding the fairness of the procedures which have, in fact, been followed.
The Appellant’s complaint is that the procedures adopted by the Houses are not capable of meeting the admitted standards of constitutional fairness. His complaint relates to the entire structure of the Joint Committee and the reporting system established by the Standing Orders.
The core of the complaint is that the remit of the Committee is that it will simply collect evidence and that it will not and cannot do anything more (Order 63A.2). The Committee will not consider what evidence should or should not be heard. It will have no power to rule on the admissibility of evidence, to consider and weigh the credibility of witnesses or their expertise. Examination of the Appellant’s computer and hard drive will require the hearing of experts who are appropriately qualified in matters of information technology to enable them to give expert opinion on the presence, absence or function of the “Trojans” or viruses said to be on that hard drive. Consequently, the entirety of all evidence gathered, include expert evidence, whether in the form of transcripts or video or audio tapes and any documentary will simply be gathered and handed over in an entirely undigested form to all the members of each House.
The result will be, accordingly, it is submitted, that there cannot be a fair hearing before either House. The members cannot reasonably or realistically be expected to absorb and consider such evidence, “in all its abundance,” in such undigested form. The Appellant complains that he will not be allowed to give or call witnesses or otherwise produce evidence before either House. Counsel for the Attorney General and for the Houses disputes this and says that there is nothing to prevent such evidence being given as is required.

Constitutionality of section 3A of 1997 Act
The Court, in accordance with long established principles, must presume that legislation duly enacted by the Oireachtas is in conformity with the Constitution. The courts, as the judicial arm, must accord due respect laws passed by the Oireachtas, the designated organ of State with the exclusive power to pass laws.
This principle has particular significance in the case of the section under attack. It was passed for the particular purpose of assisting the Oireachtas in the performance of its exclusive and important function of considering a resolution proposing the removal of a judge from his judicial office. In order to do so, the Houses of the Oireachtas are obliged by the Constitution to consider whether the judge in question has been guilty of misbehaviour. This is a weighty responsibility. It necessarily involves the Houses in an investigation of acts alleged against a judge.
The Appellant contends that a requirement that the judge appear before the Committee constitutes an encroachment on the independence of the judiciary. He argues that a resolution may be proposed on the basis of a mere allegation.
It is axiomatic that any resolution proposed pursuant to Article 35.4.1 of the Constitution will involve some sort of intrusion into the life or affairs public or private of the judge. That is the nature of the function assigned to the Oireachtas. For reasons given elsewhere in this judgment, it is to be presumed that the powers of the House of the Oireachtas will be exercised in respect of the principles of basic fairness and constitutional justice. Furthermore, the courts will, if necessary, protect the independence of the judiciary and the rights of an individual judge from irresponsible, irrational or malicious abuse of these powers.
In the light of these basic principles, the Court considers that there is no ground for challenge to the power of a Committee of the Houses of the Oireachtas to call a judge before it or to require him or her to produce documents or other things, which the Committee considers necessary for its investigation of matters relating to a motion duly proposed pursuant to Article 35.4.1. It is legitimate for the Committee to ask a judge to provide relevant documents and articles.
The Court does not consider that the power to call a judge as a witness or to produce articles as evidence involves any improper or unconstitutional invasion of judicial power or judicial independence. On the contrary, the power is included in the Constitution for the purpose of ensuring the fitness and integrity of the judiciary. The Court finds nothing unconstitutional in the impugned provision.

Conclusion on interpretation of Article 35.4.1
The first key question of interpretation is whether the Houses of the Oireachtas may or may not appoint a committee, joint or otherwise, for the purpose, to use a neutral term, of assisting them in their consideration of a resolution pursuant to Article 35.4.1 of the Constitution. While the Appellant does not question the power of the Houses to appoint a committee with appropriate powers, the Court must express its opinion on the point, as it is an essential link in the reasoning. The second, related question is whether, assuming the power to appoint a committee, it may be of the type which has been adopted by the Houses in their amended Standing Orders or whether, as the Appellant contends, any such committee must have power to assess, evaluate and report findings on the evidence heard.
Article 35.4.1 is entirely silent on both these questions. It does not require the Houses to appoint committees, nor does it prescribe any particular type of Committee. It would not be right, however, to treat Article 35.4.1 as containing a complete code. The Article must be read with other relevant provisions of the Constitution. It is necessary to consider whether a requirement to operate through committees of any particular kind should be read into the provision.
The principle of the separation of powers, combined with Article 15.10 of the Constitution, is necessarily relevant. The Oireachtas is the body exclusively charged with considering whether a judge has so misbehaved (or is so incapacitated) as to render him or her no longer fit to hold the office of judge under the Constitution. Whether or not it is unsatisfactory or undesirable that elected political representatives should sit in judgment on the behaviour of a judge, whether the power is open to abuse through a government’s use of its majority in the Oireachtas, whether, as has been suggested, a simple majority vote, as provided by Article 15.11, should not suffice are all irrelevant. The Constitution is clear. A judge may be removed from office only by means of a resolution of both Houses and by no other means whatever.
Two observations may, nonetheless, legitimately, be made. Firstly, there is no evidence whatever in the history of this State or, indeed, of any of the countries of the common law, in modern times that the corresponding power of removal of judges has ever been abused by government. As has been submitted on behalf of Ireland and the Attorney General, the constitutional history lends little support to the Appellant’s stated apprehension of infringements of judicial independence. The material placed before the court includes many examples of parliamentary restraint in considering the exercise of the power. Secondly, though the matter need not be considered in this case, in the event of irrational or irresponsible abuse of the power, as by the proposal of a resolution in response to an unpopular judicial decision, or otherwise maliciously or in bad faith, it is not to be doubted that the courts would be prepared to exercise an appropriate level of judicial review. They would have a duty, apart entirely from their duty to guarantee fair procedures, to preserve the constitutional balance and to protect a judge from abuse of power. The obiter dictum of O’Flaherty J in O’Malley v An Ceann Cómhairle suggests that the courts would not, in a clear case, permit even the Oireachtas to default on its constitutional obligations.
Since the Houses of the Oireachtas have the exclusive power to consider the passing of resolutions for the removal of a judge from office, the Courts must, in accordance with the principle of the separation of powers, exercise a significant level of judicial restraint when considering the exercise of that power. The Appellant has not, in these proceedings, challenged the right of the Houses of the Oireachtas to pass resolutions for the purposes of Article 35.4.1. He does not deny to the Oireachtas the power to investigate allegations of misbehaviour by a judge, to find facts and, inherent in the constitutional allocation of that function, to decide what constitutes such misbehaviour as would warrant the removal of a judge from office. The Appellant demands only that the procedures followed by the Houses meet the fundamental constitutional requirements of fairness and justice. The Court is asked to decide that the procedures proposed do not meet that standard.
The Houses of the Oireachtas explicitly guarantee in the measures already adopted and in the resolutions proposed to respect the “principles of basic fairness of procedures and the requirements of natural and constitutional justice.” (see paragraph (5) of Standing Orders 63A and 60A.) By the use of this language, the Houses have rightly and necessarily undertaken to accord to the Appellant the procedural rights historically and universally seen as essential, where a person’s good name, livelihood, liberty or other rights are at stake. This Court, in In re Haughey [1971] I.R. 217 unambiguously declared that they were guaranteed by Article 40.3 of the Constitution.
It is necessary to identify a standard by which the Court can measure whether a designated organ of government is or is likely to fall short of its constitutional obligations.
Murray J, as he then was, in T.D. v Minister for Education, at page 337, considered the circumstances in which a court might consider making an order directing, in that case, the executive to fulfill a legal obligation. He said:
“I have already made the distinction between “interfering” in the actions of other organs of State in order to ensure compliance with the Constitution and taking over their core functions so that they are exercised by the courts. For example, a mandatory order directing the executive to fulfill a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness.”
The standard of “clear disregard” was used, in that case, in the somewhat different context of an order directed to the government to make provision for certain disadvantaged children. The legal basis for the adoption of this standard was, however, the fact that the matters at issue fell primarily within the executive province of government. The standard should also be applied, in the opinion of the Court to the performance of the exceptional and sensitive function constitutionally assigned to one organ of government, the legislature, of removing of judges from office. It accords with the presumption of constitutionality.
The Appellant claims that it is necessary, in order to assure the basic fairness of the procedures proposed, that the Houses appoint a committee to investigate, gather evidence and report their findings and conclusions to the Houses. It is not open to the courts to read such extensive additional provisions into the Constitution in the absence of a constitutional mandate. Article 35.4.1 must be read in the light of Article 15.10. Insofar as the former provision is silent as to matters of procedure, it must be recalled that Article 15.10 empowers each House to make its own “rules and standing orders,” and places no express limits or restrictions on that power. It is acknowledged, of course, as already stated, that the Houses must respect constitutional justice and fair procedures.
There is nothing, therefore, in either Article 35.4.1 or Article 15.10 to prevent the Houses from adopting Standing Orders providing for the establishment of a Committee to investigate the question of whether a judge has been guilty of “stated misbehaviour,” as alleged in a resolution “calling for his removal,” which has been duly proposed pursuant to Article 35.4.1. It is the proposal of the resolution that confers that power. Having regard to the draconian character of that power, it is clear that neither a House of the Oireachtas nor any of its committees would have power to investigate alleged misbehaviour by a judge in advance of and merely in contemplation of the possible proposal of such a resolution.
Having regard to the potentially complex nature of any allegation of misbehaviour, it is obvious that any House of any parliament charged with the performance of this constitutional function will need to use a committee to gather evidence. Apart from its being obvious and uncontested, it has been demonstrated that it has been historically the practice of parliaments to appoint committees and assign to them, to varying degrees, the role of investigation.
The nub of the Appellant’s complaint is that the Houses do not have power to appoint a Committee of the sort provided for respectively by the new Standing Orders 63A and 60A respectively of the Dáil and Seanad, containing the key provision:
“…provided that the Select Committee shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same.”

However, neither Article 35.4.1 nor Article 15.10 prohibits the Houses of the Oireachtas from adopting such a provision. Ultimately, this Court could conclude that this provision was beyond the power of the Houses only if it was clear that it would be, recalling the dictum of Murray J, cited above, in “clear disregard” of the right of the Appellant to the benefits of basic fairness of procedures and constitutional justice. As is clear from the terms of the Standing Orders themselves, the Committee must “at all times have due regard to the constitutional principles of basic fairness of procedures and the requirements of natural and constitutional justice.” It follows, therefore, that the Appellant’s complaint is necessarily narrowed down to an issue of whether he can show that the procedure before each House, following receipt of the Committee report, will necessarily be in clear disregard of those principles.
Part of the Appellant’s complaint is that he will not have the right to give or call witnesses before the Houses. This contention is apparently based on the assumption that all of the evidence will have been taken by the Committee. However, there is nothing in the Standing Orders to prevent the Houses hearing evidence, however unprecedented that course of action might be. Insofar as the Appellant claims that that possibility must be open if constitutional justice is to be respected, then it follows that the Houses must be open to considering further evidence. More generally, the Appellant complains that it is, in general highly unsatisfactory to expect all the members of each House to consider, absorb and adjudicate upon the great mass of evidence which will be placed before them.
No doubt, it is true that it will be difficult for an entire House of the Oireachtas to perform those tasks as each individual member must make his or her own decision on the issues raised by the resolution. But that is of the very nature of the process laid down by the Constitution. Whether the debate upon the resolutions takes place upon consideration of the considered report and opinion of a Committee, as the Appellant proposes, or on the “undigested” evidence as envisaged by the Standing Orders, the task for the elected members will be extremely difficult. It is important to recall that the Appellant, even while advocating the first type of Committee, submits that its opinions on the evidence or otherwise would not be binding.
The Court accepts that it might well have been more satisfactory for the Houses to have opted for the first type of committee. A committee empowered to hear evidence, rule on admissibility, resolve conflicts of evidence and report its findings to the Houses would have had obvious advantages. The Committee would have been in a position to schedule hearings, hear and evaluate the evidence of witnesses, eliminate irrelevant material, concentrate on the principal points at issue and furnish a coherent and cogent report to the Houses. In the opinion of the Court it would have been open to the Houses to have chosen such a committee, but they have not done so. It may well be that the Houses were concerned that such a committee could not validly be appointed, having regard to the decision of this Court in Maguire v Ardagh, already cited. If so, it should be said that, so far as the power to appoint a committee was concerned, that case related to the question whether the Oireachtas had inherent implied power to appoint Committees to investigate the behaviour of individuals. It has no application to a case where the Oireachtas is acting in the exercise of a power expressly conferred on it by the Constitution.
In any event, the Court is satisfied that it was within the power of the Houses of the Oireachtas to adopt Standing Orders 63A and 60A respectively and to depute to the Select Committee the power to report without making findings of fact, making recommendations or expressing opinions. The Court is satisfied that the Committee and, following the report of the Committee, the Houses can, as it is agreed they must, accord to the Appellant his full rights to constitutional justice and fair procedures.
It should be added that the powers of the Committee need not be interpreted as restrictively as the Appellant suggests. It is true that the Standing Orders preclude the Committee from: (a) making findings of fact; (b) making any recommendations concerning the facts; (c) expressing any opinions in respect of same. It is not correct, however, to suggest that the Committee is required merely to place all the evidence gathered in an entirely undigested and disorganized form before each House. Paragraph (8) is material. Its says that “[f]ollowing the completion of its proceedings, the Select Committee shall furnish a report of those proceedings to the Dáil, together with appropriate transcripts and associated audio-visual material.” There is a distinction between the Report and the associated raw evidence which will be in the form of transcripts and audio-material. The paragraph proceeds to require that the “Committee shall first send its report to the Clerk of the Dáil, who shall arrange in the first instance for the report to be circulated to the members of the Dáil and to the Judge……” None of this prevents the Committee, nor could it ever have been intended, from organising the evidence gathered into a manageable form. It may and probably must prepare indices and summaries of the evidence. Those summaries may be related to distinct issues of fact raised in the resolution including the introductory paragraphs of the resolution. The entire will, no doubt, be subdivided into chapter headings. While the Committee may express no opinions, it is not prevented from pointing out issues or conflicts in the evidence. In short, the Committee is required to produce a report which will act as a useful guide to the members for their consideration, when debating the resolution, and to the Appellant and his advisers in representing him.
Properly understood, therefore, and in light of the explicit guarantees of basic fairness and respect for constitutional justice, the steps taken by the Houses of the Oireachtas to date do not infringe either Article 35.4.1, Article 15.10 nor, indeed, any provision of the Constitution. The Court therefore rejects the Appellant’s challenge to the Standing Orders.
At the hearing, an issue emerged, which had not figured explicitly among the grounds upon which leave to apply for Judicial review was granted, but which is intimately related to the Appellant’s complaint concerning the Committee’s role in the conduct of the investigation of his alleged misbehaviour. The Appellant’s essential complaint is that the scheme adopted denies him the right to a decision on whether he, in fact, committed any of the acts alleged, prior to a debate on his removal. The essence of that complaint can, however, be transferred to the stage of the debate. The Appellant’s concerns is that the members might debate and consider passing the resolutions as if they constituted one single issue, namely whether he should be removed from office for the misbehaviour stated in the resolutions. The Appellant contends that there are, in truth, two distinct issues. The first is whether, as a matter of fact he is guilty of the misbehaviour alleged. He claims that there should, first, be an adjudication on that issue before either House goes on to consider whether he should be removed from office.
The Appellant argues that a single vote might include among the majority passing the resolution deputies or senators who had not decided whether the allegations were true (or even who did not believe them to be true) but nonetheless voted for the resolution. Most precisely, he claims the right to know whether or not the members accept that he engaged in the use of websites containing child pornography as alleged.
It has to be repeated that this particular point, at least in the form in which it has been presented, did not figure among the grounds upon which leave to apply for Judicial review was granted. Presumably, it could not have done. Neither the Resolution nor the Standing Orders prescribe any particular mode of debating the resolution. Paragraph (9) of the Standing Order provides that the (respective) House “may by order make provision for the debate on the said Article 35.4.1 motion…….” It proceeds to mention some of the rights guaranteed to the Appellant and concludes with “such special rules of procedure as may be deemed appropriate.” Therefore, it is open to the Houses to adopt a rule providing either for a single vote on the resolution to remove or to divide the issue in the manner for which the Appellant contends. In that sense, it is clear that, in the ordinary way it is premature to deal with this matter. However, this is a quite exceptional case in very many respects. It is the only case in which this Court has ever been asked to pronounce on the interpretation of Article 35.4.1. The argument on the debate procedure is logically quite closely linked with the Appellant’s principal criticism of the Oireachtas scheme. Although the Houses have not yet indicated which course they are bound to follow, their counsel took the stand that it was premature to conclude whether there would be any want of fair procedures.
This appeal places the Court in an exceptional position in relation to another great organ of state, the Oireachtas. In the view of the Court, it should take the opportunity, having regard to the several circumstances mentioned in the preceding paragraph, to provide constructive guidance to the Houses in the exercise of its unique constitutional power to remove a judge. It is undesirable and would not be in the public interest to leave this matter in a state of uncertainty until the matter reaches the stage of debate before the two houses.
It is certainly within the power of the Houses of the Oireachtas, particularly having regard to Article 15.10 of the Constitution, to regulate their own procedures. The courts should intervene only where it is clear that a particular course of action would be in clear breach of the principles already frequently mentioned of basic fairness and constitutional justice. A resolution proposing the removal of a judge from office for “stated misbehaviour” necessarily and logically involves consideration of two distinct matters. The first is whether the judge who is the subject of the resolution has committed the acts alleged against him. The second is whether those acts constitute such misbehaviour as would justify his being removed from his judicial office.
It is undesirable to speculate on the possible outcome of the investigation of the Joint Committee or of the debate in the Houses. It suffices to say that it is not inevitable that one clear result will emerge. Findings may be partial or equivocal; issues of intent or accident may arise; there may be explanations, some meritorious, some less so. It is conceivable that some but not all of the facts alleged will be established to the satisfaction of members to be true. All these issues would merge into the single resolution for removal, unless the issues are separated.
It is the opinion of the Court that, as a matter of basic fairness, the Appellant should be entitled to a distinct hearing and decision on the issues of fact before he must confront the ultimate and drastic decision to remove him from office. Some support is to be found in the words of Article 35.4.1. The first part of the sentence declares that a judge may not be removed “except for stated misbehaviour or incapacity.” The second part goes on to provide that this may happen: “and then only upon resolutions passed……” These remarks are not intended to impose onerous legal requirements on the Houses. They retain a large area of discretion as to how the resolutions are put. They are not necessarily obliged to break the allegations against the Appellant into several components. They may decide that the factual issues may fairly be expressed in the form of a single proposition.

Conclusion on section 3 order
The Appellant has not, in this Court, pursued his argument that the direction made by the Committee on 1st December 2004, infringed his right not to be forced to incriminate himself. It is important, nonetheless, to draw attention to the nature of the power conferred on a Select Committee of a House of the Oireachtas by section 3 of the 1997 Act. The Committee has power to “direct in writing any person to send to the committee any document in his or her possession or power specified in the direction……” The term “document” is defined by section 1 as including a “thing.”
It is common case that this section is capable of being applied to the Appellant. The dispute relates only to the nature of the materials being sought from him. It is also common case that these materials are in the possession of the Garda Síochána and that this possession arose from their seizure by members of that force pursuant to the unlawful, and as held by the learned Circuit Judge, unconstitutional execution of a search warrant. While originally held for the purposes of the then pending trial of the Appellant, it has subsequently been retained following correspondence with the Chairman of the Committee. In correspondence in July 2004, summarised in the judgment of the Court, the Appellant accepted that he had sought access to adult pornography and that he became aware that his computer had been invaded by unwanted images. He said that he had at no time knowingly brought images of child pornography onto his computer.
It is not strictly necessary to review the argument that the section 3 order unconstitutionally requires the Appellant to incriminate himself. It has not been pursued in this Court. However it is appropriate to draw attention to the distinction between a requirement that a person make a statement or give evidence which may tend to incriminate him and a requirement that a person produce for inspection whether by the Garda Síochána or other organs of the State a physical article, including a document. The first right or privilege is recognised in our law and protected by the Constitution and, incidentally by the European Convention on Human Rights and Fundamental Freedoms, and it is not necessary to say any more about it in this case. The State or designated State organs have power to demand the production for inspection or examination of articles, premises, animals, licenses or other documents or things pursuant to a host of regulatory laws. For the investigation of crime, the Garda Síochána have certain powers, regulated by statute, subject sometimes, but not always to judicial supervision, to enter upon and search premises, including dwelling houses, and to take away articles to be used as evidence for the purpose of investigating crime. The last type of power may require the owner of the dwelling house to permit the search to take place and cooperate with the Gardaí in finding materials to take away. It cannot be said that this type of power involves any element of self-incrimination. This distinction is well described in the important decision of the European Court of Human Rights in the case of Saunders v. United Kingdom [1997] 23 EHRR 313 recognising the right to silence as guaranteed by Article 6 of the Convention. The judgment contains the following passage at paragraph 69:
“The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention, and elsewhere, it does not extend to the use in criminal proceedings of a material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath blood and urine samples and bodily tissues for the purposes of DNA testing.”
An analogous distinction was adopted by the Supreme Court of the United States in the Schmerber –v- California 384 U.S. 757 when it considered a citizen’s right to silence and privilege against self-incrimination under the Fifth Amendment (the Court also referring to similar protections under State constitutions) which reflects the historic common law rule against self-incrimination. In that case, after the defendant’s arrest on suspicion of driving under the influence of alcohol, while at a hospital receiving treatment for injuries suffered in a motorcar accident, a blood sample was withdrawn by a physician at the direction of a police officer, acting without a search warrant, despite the defendant’s refusal, on the advice of counsel, to consent to the blood test. In delivering the opinion of the Court, Brennan J. in acknowledging that the Fifth Amendment of the Constitution of the United States guaranteed the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty for such silence, went on to state:
“We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.”
Later in his opinion in referring to the privilege against self-incrimination he stated:

“On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony”, but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.”
In the view of the Court, the use of the power conferred on a Committee does
not give rise to considerations of self-incrimination. It is important, nonetheless, to draw attention to the provisions of sections 6 and 11 of the 1997 Act. Section 11 provides that a witness before a Committee “shall be entitled to the same privileges and immunities as if the person were a witness before the High Court.” Furthermore, where a person directed to give evidence before a Committee or has been required to produce a document (which includes any thing), section 6 permits him to claim that he “is of opinion that, by virtue of section 11(1), he or she is entitled to disobey the direction…” Thereupon, the Committee is required by section 6(2) to “apply to the High Court in a summary manner for the determination of the question…”
Turning to the Appellant’s substantive arguments, it is most convenient to deal, in the first instance, with the contention that the computer materials are not in the Appellant’s “possession or power,” as is required by section 3(1)(c) of the 1997 Act. The Court accepts that, where a person is not in actual possession, “power” is equivalent to an enforceable legal right as was held in Bula Limited v Tara Mines Limited. The Appellant is indisputably the owner of the computer materials. They were unconstitutionally seized from him and he is entitled to their return. This is an “enforceable legal right.” He claims to apprehend that he cannot lawfully take possession of them, because there are unlawful images of child pornography on the computer. This does not affect his legal title to the goods. In any event, section 1 of the Child Trafficking and Pornography (Amendment) Act, 2004 amends the 1998 Act, by inserting section 13, which provides that:
“Nothing in this Act prevents—
(a) the giving of or compliance with a direction under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997,……”
In the opinion of the Court, this provision conclusively deprives the Appellant’s argument of any merit. The argument based on suggested circularity is entirely unconvincing. At the time the Committee gave its direction, the Appellant was the undisputed owner of the computer materials. To the extent that his possession or possible possession at that time was unlawful, the matter is cured by rendering lawful the “giving” of the direction. If there were to be any problem of illegality in his taking possession of the materials, it is removed by the provision regarding “compliance.”
It remains to consider the appellant’s reliance on the exclusionary rule, in respect of which the parties made particular reference to The People (Attorney General) –v- O’Brien and The People (Director of Public Prosecutions) –v- Kenny.
In the particular circumstances of this case it is not pertinent to review the full ambit and effect of the exclusionary rule or the principles as set out in those cases. This case has individual features which allow the issues it raises to be resolved on its facts without reference to arguments of general application.
As already mentioned there is no doubt that the computer materials in question, when seized on foot of the search warrant, were seized unlawfully and in breach of the appellant’s constitutional rights.
As a consequence evidence related to the seized computer materials was declared inadmissible at his subsequent trial on criminal charges and he was acquitted of those charges. He cannot be prosecuted again on such charges.
The computer remains in the ownership of the appellant. In the ordinary course of events he was entitled the return of his property by reason of that ownership and in a complete vindication of the constitutional right which was breached. He did not seek to do this because, as he has stated, it contained pornographic material of children the possession of which is prohibited by law. A particular feature of this case is that the appellant, in response to the allegations of stated misbehaviour, has told the Select Committee that at no time did he knowingly subscribe to or access websites containing child pornography and that an expert retained on his behalf confirmed that there were viruses found on the disk of his computer. Such viruses are capable of manipulating the computers so as to download child pornographic images, or any other images, onto a computer without the knowledge or consent of its owner. Thus, while the appellant asserts that he was never personally responsible for access to or use of child pornography on a website, he has acknowledged and accepted that there is some child pornography to be found on his computer. Accordingly, he also adopted the position that as a consequence the Gardaí could not return it to him and he could not receive it.
It is also an exceptional feature of the situation that the inhibition in returning the computer to the actual possession of its owner stems not so much from the unlawful search and seizure of the computer but primarily, as the appellant himself acknowledges, from the unlawful nature of the material on it. The situation is analogous to one where heroin had been unlawfully seized on foot of an invalid search warrant but which could not be returned to its owner, not as a consequence of an unlawful search of premises in breach of that person’s constitutional rights, but by reason of the unlawful nature of the substance seized.
If the computer could have been and had been returned to his possession it could not be said that the exclusionary rule means it was forever immune, in all circumstances, from a lawful seizure or order for production. In the present case the order for production might be regarded as legitimately triggered, apart from any other consideration, by the appellant’s express and public reliance, in the course of the Article 35 process, on the assertion that his computer material was affected by the placing on it of unlawful material albeit which he did not want and had not sought.
As a result of the foregoing situation the appellant has maintained that the computer was neither in his power nor possession and he was therefore not bound to comply with the direction of the Select Committee.
On 1st of December, 2004, the date of the s. 3 Order, it was lawful, having regard to
s. 13 of the Act of 1998 as amended, for the appellant to seek and obtain the computer, his property, from the Gardaí for the purposes of complying with the direction of the Select Committee. When the direction was made the computer was within his own “power or possession”.
That section, in enabling the Oireachtas, through a Select Committee, to require a person who has either in their possession or within their power a computer containing child pornography material to produce such material is a legitimate means of ensuring that such a Committee can fulfil their constitutional functions where those functions are legitimately concerned with such an issue.
Accordingly, the adoption of the amending Act of 2004 was not a colourable device but rather a clearly defined and lawful means by which, in the circumstances of this case, a committee of the Oireachtas, in the exercise of its constitutional powers, could require an individual to produce his own property insofar as it is lawfully available to him. Accordingly this ground of appeal must fail.

Double jeopardy
The Appellant obtained leave to apply for judicial review in part on the ground that, having been acquitted at a criminal trial, he could not, in effect, now be tried by the Houses of the Oireachtas effectively for the same offence. As already stated, the learned trial judge rejected this argument. The Appellant has included the matter in his notice of appeal, but has, in the view of the Court, rightly, not pressed the matter on appeal. The acquittal of the Appellant of the charges laid against him in the indictment means that he can never be prosecuted again in respect of those matters. The Houses of the Oireachtas are considering an entirely different matter. It is whether the Appellant has conducted himself in respect of those or very similar matters to the extent that constitutes “misbehaviour” of sufficient gravity to warrant his removal from the bench.

Conclusion
For the reasons given in this judgment, the Court will dismiss the appeal and affirm the order of the learned High Court Judge.