SC Commencement
Andrews Productions v. Gaiety Theatre
Walsh J.
[1973] IR 297
WALSH J. :”
13 Feb.
The applicants held the premises known as the Gaiety Theatre, 46-50 South King Street in the City of Dublin, from the respondents under a lease dated the 5th August, 1969, for a term of three years commencing on the 23rd September, 1969. The lease came to an end on the 22nd September, 1972. The applicants applied for a new tenancy under Part III of the Landlord and Tenant Act, 1931, and relied on the fact that the premises had been used wholly for the purpose of carrying on business as a theatre. The claim was contested by the respondents on the ground that the premises did not constitute a tenement within the meaning of s. 2 of the Act of 1931 because it was alleged that the letting was one for the temporary convenience of the lessor and that the matter was governed by s. 2 (b) of the Act of 1931. The applicants were successful in their application in the Dublin Circuit Court for a new tenancy, the terms of which do not concern this appeal, and the respondents appealed to the High Court where the matter was heard by Mr. Justice Butler. On the 26th July, 1972, he dismissed the appeal and confirmed the order of the Circuit Court. The main point at issue between the parties was the question of whether or not the lease of 1969 had been a letting made for temporary convenience.
By a notice dated the 21st August, 1972, the respondents purported to take an appeal to this Court against the decision of the High Court judge. The notice of appeal was served on the 21st August upon the applicants’ solicitors. However, the notice of appeal was not entered in the office of the Supreme Court within the required time, although on the 4th September the registrar of this Court accepted entry of the notice of appeal de bene esse. On the 15th November, 1972, the respondents served notice of intention to apply to this Court for an order extending the time for entering the notice of appeal to the said 4th September, 1972, or for an order deeming good the entry of the notice of appeal already made. The matter has now come before this Court upon this latter motion and the first point which falls to be considered is whether or not any appeal lies to this Court.
Mr. Landy, on behalf of the respondents, contended that, because the order of Mr. Justice Butler was made in the High Court, the respondents as of right are entitled to appeal to this Court by virtue of the provisions of Article 34 of the Constitution which confer upon this Court an appellate jurisdiction from all decisions of the High Court, with such exceptions and subject to such regulations as may be prescribed by law: see the decisions of this Court in The State (Browne) v. Feran 7 and In re Morelli, Vella v.Morelli. 8 Mr. Landy contends that there is no statutory restriction upon taking an appeal in this case from the High Court to this Court.
By s. 5, sub-s. 6, of the Act of 1931, a right of appeal from the Circuit Court of Justice to the High Court of Justice was granted in respect of every order made by the Circuit Court under that Act. This sub-s. 6 was repealed by the Courts of Justice Act, 1936, and in lieu thereof it was provided that appeals should be taken in the same manner as appeals from other orders of the Circuit Court of Justice as provided by s. 38 in Part IV of that Act. Section 39 of the Act of 1936 provided9 that the decision of the High Court of Justice on an appeal under that part of the Act should be final and conclusive and not appealable. The Circuit Court of Justice and the High Court of Justice mentioned in those statutory provisions ceased to exist in September, 1961, and were succeeded by the present Circuit Court and the present High Court which were established on the 29th September, 1961. Similarly the former Supreme Court of Justice, which had been set up under the Constitution of Saorstát ireann , 1922, and which was continued in being by virtue of the provisions of Article 58 of the Constitution of Ireland, 1937, ceased to exist and the Supreme Court provided for in Article 34 of the Constitution of 1937 (which is this present Court) came into being and was established on the 29th September, 1961. The appellate jurisdiction of this Court from all decisions of the High Court can be made subject to such exceptions as may be prescribed by law.
Mr. Landy has submitted that the effect of the coming into force of the Constitution of 1937 was to cause the provision of s. 39 of the Act of 1936 to cease to be operative, and that therefore it was not captured by the provisions of s. 48 of the Courts (Supplemental Provisions) Act, 1961. Mr. Landy has submitted that this is so even though the Supreme Court did not come into existence until 1961. It is true that a law excepting any decision of the High Court from the appellate jurisdiction of this Court would only be effective if it had been enacted after the coming into force of the Constitution of 1937: see Warner v. Minister for Industry and Commerce 10; and The Attorney General (Fahy) v. Bruen 11 which were approved by this Court in The State (Browne) v. Feran. 12 I am also of opinion that if such legislation were passed subsequent to the coming into force of the Constitution it would have to be expressly referable to the Supreme Court to be set up under Article 34 of the Constitution even though that Supreme Court had not yet been established. Once the Oireachtas set up under the Constitution of 1937 had been established it could enact such legislation.
The former Supreme Court of Justice continued to function until September, 1961, by virtue of the provisions of Article 58 of the Constitution; and all the pre-existing statutory restrictions which affected the appellate jurisdiction of the former Supreme Court of Justice continued in force so long as that court existed or until such statutory provision had been repealed or amended: see the decision of the former Supreme Court of Justice in Sullivan v.Robinson. 13 The provisions of Article 34, s. 4, sub-s. 3, of the Constitution dealing with the appellate jurisdiction of the Supreme Court did not in any way relate to the courts carried on by virtue of Article 58. If, therefore, this present attempt to bring an appeal to this Court had been brought before the disestablishment of the former Supreme Court of Justice, it must necessarily have failed because of the provisions of s. 39 of the Act of 1936 which continued in force and were effective in relation to the former courts until the date of their disestablishment. There had been no statutory repeal or amendment of the provisions of s. 39 of the Act of 1936 and, in my view, the provisions of Article 34 did not affect it because, up to the disestablishment of the former courts, the statutory provision referred only to the former courts.
One must turn therefore to examine the question of whether the appellate jurisdiction of this Court from all decisions of the High Court has been in any way restricted or qualified by statute. Section 48, sub-s. 1, of the Courts (Supplemental Provisions) Act, 1961, provides that any enactment contained in the Courts of Justice Acts, 1924-1961, shall apply to the courts established by the Courts (Establishment and Constitution) Act, 1961, and to the judges and officers thereof “as if it were enacted in this Act” subject to certain modifications and adaptations which have no application in the present case. Section 48 does not apply to any enactment which has been repealed before the date on which the Courts (Supplemental Provisions) Act, 1961, came into operation, which was the 29th September, 1961. For the reasons I have already stated the provisions of s. 39 of the Act of 1936 were not repealed and were not rendered inoperative by the provisions of Article 34 of the Constitution prior to the 29th September, 1961.
In my view, the phrase “as if it were enacted in this Act” has the effect of re-enacting all the statutory provisions visions which are embraced by s. 48 and in particular, for the purpose of this case, the provisions of s. 39 of the Act of 1936. In view of the effect of the re-enactment of s. 39 of the Act of 1936 by the provisions of s. 48 of the Courts (Supplemental Provisions) Act, 1961, it follows that s. 39 of the Act of 1936 is to be read and construed as if it were a post-Constitution enactment excluding from the appellate jurisdiction of this Court the decisions of the High Court in appeals from the Circuit Court.
Mr. Landy has submitted that the words used in s. 48 are too vague or uncertain and that any uncertainty or vagueness should be resolved on the basis that it was not the intention of the Oireachtas so to restrict the appellate jurisdiction of this Court. I think that the words and the intent of s. 48 are quite clear and that the effect is as I have stated. I might add that the respondents’ right of appeal from the Circuit Court to the High Court only exists because of s. 48 of the Courts (Supplemental Provisions) Act, 1961.
For the reasons I have already given, I am of opinion that the decision of Mr. Justice Butler in the appeal heard by him from the decision of the Circuit Court has been excluded from the appellate jurisdiction of this Court by the provisions of s. 48 of the Courts (Supplemental Provisions) Act, 1961, and that therefore the present motion is misconceived and should be struck out.
HENCHY J. :”
Where an appeal has been unsuccessfully taken to the High Court from a decision of the Circuit Court, does a further appeal lie to the Supreme Court? That is the question presented by this case. The applicants were the lessees of the Gaiety Theatre, Dublin, from the respondents. The applicants applied in the Circuit Court for a new tenancy under the Landlord and Tenant Act, 1931. That application was granted, and it was affirmed on appeal to the High Court. The respondents now seek an extension of time for appealing to this Court from that decision of the High Court. The hearing before us has been confined to the preliminary question as to whether an appeal lies to this Court, even if time were extended.
Section 39 of the Courts of Justice Act, 1936, provides that a decision of the High Court (or the High Court on Circuit) on an appeal from the Circuit Court under Part IV of that Act shall be final and conclusive and not appealable. Having reached that plain and seemingly impassable terminus, counsel for the respondents seeks to find a way round the impasse by invoking Article 34, s. 4, sub-s. 3, of the Constitution of Ireland, 1937, and s. 48 of the Courts (Supplemental Provisions) Act, 1961.
Article 34, s. 4, sub-s. 3, lays down that the Supreme Court shall have, with such exceptions and subject to such regulations as may be prescribed by law, appellate jurisdiction from all decisions of the High Court. The exceptions mentioned must be found in Acts of the Oireachtas passed after the coming into operation of the Constitution: see Warner v. Minister for Industry and Commerce 14; The Attorney General (Fahy) v. Bruen 15; and The State (Browne) v. Feran. 16 As to the present case, the only statutory exception pointed to is s. 48 of the Courts (Supplemental Provisions) Act, 1961. Sub-section 3 of that section says that every enactment to which the section applies shall apply to the courts established by the Courts (Establishment and Constitution) Act, 1961, and to the judges and officers thereof “as if it were enacted in this Act,” subject to the necessary modifications and adaptations. Sub-section 1 (a) of s. 48 makes the section applicable to the Courts of Justice Acts 1924-1961, subject to the provisions of sub-s. 1 (b) of the section. Sub-section 1 (b) of s. 48 says that the section shall not apply, inter alia, to “any enactment which has been repealed before the operative date [29th September, 1961] or which is repealed by this Act. . .” This is the provision that counsel for the respondents relies on; and he contends that s. 39 of the Act of 1936, which made the High Court decision unappealable, has been repealed by Article 34, s. 4, sub-s. 3, of the Constitution.
This submission, it seems to me, enjoys more novelty than cogency. It is clear that s. 39 of the Act of 1936, unless excluded by s. 48, sub-s. 1 (b), of the Courts (Supplemental Provisions) Act, 1961, is brought into force anew by the latter section as if it had been re-enacted with all
necessary adaptations and modifications. It is conceded that s. 39 of the Act of 1936 is excluded only if it ranks as “any enactment which has been repealed before the operative date or which is repealed by this Act.” The submission of counsel for the respondents that s. 39 of the Act of 1936 is excluded because it has been repealed by the Constitution fails, in my opinion, on two main grounds.
First, the exclusion of “any enactment which has been repealed before the operative date” is applicable only to statutory repeal. The word “repeal” is inapt as a legislative word to describe the abrogative effect of the Constitution on prior enactments. On the contrary, the word has a precise and well-recognized meaning in the vocabulary of the parliamentary draftsmen and, unless a contrary intention appears, it denotes statutory repeal with the benefit, since 1889, of the automatic savings attached to such repeals by the relevant Interpretation Act. There is no such contrary intention in the context here.
Secondly, even if it could be held that s. 48 expresses itself as not applying to enactments which had become invalid because of their inconsistency with the Constitution, the fact is that s. 39 of the Act of 1936 has not suffered any such invalidity. The argument of counsel for the respondents is that the effect of Article 34, s. 4, sub-s. 3, of the Constitution was to give “appellate jurisdiction from all decisions of the High Court” to the Supreme Court, with the exception of those decisions excluded by the legislature after the coming into operation of the Constitution; and that since s. 39 of the Act of 1936 preceded the Constitution it became invalid on the coming into operation of the Constitution. The flaw in that argument is that the Supreme Court referred to in Article 34, s. 4, sub-s. 3, did not exist until it was established in 1961 by the Courts (Establishment and Constitution) Act, 1961. The Supreme Court of Justice that was in existence before the coming into force of the Constitution in 1937 continued to function and, subject to the provisions of the Constitution relating to the determination of questions as to the validity of any law, exercised the same jurisdiction as theretofore: see Article 58, s. 1, which was a transitory provision that has now lapsed. Between 1937 and 1961, therefore, it could not be said that s. 39 of the Act of 1936 was ineffective to remove the decisions therein mentioned from the appellate jurisdiction of the then Supreme Court of Justice: see Sullivanv. Robinson. 17
The joint effect of the establishment of the present Supreme Court by s. 2 of the Courts (Establishment and Constitution) Act, 1961, and the re-enactment, with the necessary modifications, of s. 39 of the Act of 1936 by s. 48 of the Courts (Supplemental Provisions) Act, 1961, is that decisions of the High Court (or of the High Court on Circuit) on appeal from the Circuit Court are now validly excluded from the appellate jurisdiction of this Court. Since the respondents are without a right of appeal to this Court, the application for extension of time to appeal should, in my judgment, be refused.
GRIFFIN J. :”
I agree for the reasons given by Mr. Justice Walsh and by Mr. Justice Henchy.
Campus Oil v. Minister for Industry
[1983] IR 83
O’Higgins C.J.; Walsh J. 85
S.C.
O’Higgins C.J.
17th June 1983
I am aware of the statement of reasons about to be read by Mr. Justice Walsh, and I agree with it.
Walsh J.
On the 1st September, 1982, the plaintiffs commenced proceedings against the defendants seeking declarations to the effect that the provisions of the Fuels (Control of Supplies) Order, 1982, made under the Fuels (Control of Supplies) Acts, 1971 and 1982, are inconsistent with the provisions of the Treaty of Rome and, in particular, with the provisions of articles 30, 31, 92 and 93 of the Treaty. By a notice of motion of the same date the plaintiffs claimed an interlocutory injunction to restrain the defendants from implementing all or any of the provisions of the order of 1982. An application for an interlocutory injunction was refused by the High Court on the 13th September, 1982. Subsequently the plaintiffs’ statement of claim was delivered, as was the defence of the defendants and the reply of the plaintiffs thereto.
The learned judge of the High Court, Mr. Justice Murphy, formed the opinion that the action raised a question of the interpretation of the Treaty of Rome, and he formed the opinion that a decision on that aspect of the case was necessary to enable him to decide the action before him. He informed the parties of his intention to seek a decision from the Court of Justice of the European Communities on the interpretation of the relevant articles of the Treaty pursuant to the provisions1 of article 177 of the Treaty. All the defendants submitted to him that it was not necessary to refer any question to the Court of Justice at Luxembourg or, in the alternative, that it was premature to do so. The learned High Court judge rejected that view and maintained his intention to request a decision of the Court of Justice as to the proper interpretation of articles 30, 31 and 36 of the Treaty. For the purposes of this judgment it is unnecessary to set out the precise wording2 of the questions raised by the judge for decision by the Court of Justice. They are to be found in the schedule to what purports to be the order of the judge dated the 9th December, 1982.
By a notice of appeal to this Court dated the 26th January, 1983, the first three defendants sought an order from this Court discharging or setting aside the order referring the questions to the Court of Justice. On the 25th February, 1983, the matter came before this Court and we heard arguments from counsel for all the parties on the question of whether or not an appeal lies to this Court against the reference made by Mr. Justice Murphy to the Court of Justice at Luxembourg. The Court dismissed the appeal on the grounds that no such appeal lies and that, therefore, the Court had no jurisdiction to entertain any such appeal. The Court indicated that it would give its reasons later.
One of the results of Ireland’s accession to the Treaty was that the Treaty itself became part of the domestic law of the State. Consequently, it is the duty of a national judge, in this case Mr. Justice Murphy, to apply the Treaty provisions if it is necessary to do so for the decision in the case before him. It is he who decides the case and, therefore, it is he who must apply the relevant law which will include the provisions of the Treatyif they are applicable. The function of the Court of Justice is to interpret the provisions of the Treaty for the benefit of the judge so that he may apply the Treaty provisions, as interpreted by the Court of Justice. The system is very similar to our own national system of consultative Cases Stated. In passing, it may be noted that in Irish law no appeal lies against the decision of any judge to state a consultative case.
In Irish law there are no rules of court and no statutory provisions which purport to permit this appeal to this Court. The decision not to make any such rules of court was based upon the opinion that such rules would be in breach of the Treaty rights conferred upon the national judge.
A request by a national judge to the Court of Justice for an interpretation of articles of the Treaty is not, in any sense, an appeal to a higher court. It is an exercise of a right (which, by its nature, is non-contentious) to request an interpretation of the Treaty from the Court of Justice which itself is the only one having jurisdiction to give such binding interpretations. The national judge, by virtue of this power conferred upon him by the Treaty, exercises a function under Irish law in making such a request. The power is conferred upon him by the Treaty without any qualification, express or implied, to the effect that it is capable of being overruled by any other national court. It is not within the power of the Oireachtas, or of any rule-making authority, to give any national court the power to modify or to control the unqualified jurisdiction conferred upon the national judge by article 177 of the Treaty. The national judge has an untrammelled discretion as to whether he will or will not refer questions for a preliminary ruling under article 177. In doing so, he is not in any way subject to the parties or to any other judicial authority.
In so far as any reliance is sought to be placed upon Article 34 of the Constitution (which gives a right of appeal to this Court from all decisions of the High Court, subject to such exceptions as are permitted by law), in my view the reference made by Mr Justice Murphy in this case is not a decision within the meaning of Article 34. He made no order having any legal effect upon the parties to the litigation. If and when he comes to apply the Treaty provisions to the case before him, then he will have made a decision which can be appealed to this Court. This Court would then have to decide whether or not the Treaty provisions in question were applicable to the case. However, even if the reference of questions to the Court of Justice were a decision within the meaning of Article 34 of the Constitution, I would hold that, by virtue of the provisions3 of Article 29, s. 4, sub-s. 3, of the Constitution, the right of appeal to this Court from such a decision must yield to the primacy of article 177 of the Treaty. That article, as a part of Irish law, qualifies Article 34 of the Constitution in the matter in question.
It is as a matter of Irish law that article 177 of the Treaty confers upon an Irish national judge an unfettered discretion to make a preliminary reference to the Court of Justice for an interpretation of the Treaty, or upon the validity or the interpretation of acts of the institutions of the Community, or upon the interpretation of statutes of bodies established by an act of the Council, where the statutes so provide. The very purpose of that provision of article 177 of the Treaty is to enable the national judge to have direct and unimpeded access to the only court which has jurisdiction to furnish him with such interpretation. To fetter that right, by making it subject to review on appeal, would be contrary to both the spirit and the letter of article 177 of the Treaty.
The Court has been informed and, indeed, is aware that in other member States of the European Economic Community provision has been made for appeals to higher courts against decisions to refer questions under article 177 by national judges and courts which are normally subject to appeal. It is not necessary for me to make any observation upon the law of other countries, as I take the view that I must decide the question in the context of Irish law only. The Court has also been referred to a number of cases before the Court of Justice in which this question has been raised, such as Rheinmühlen-Düsseldorfv. Einfuhr-und Vorratsstelle Getreide 6 (at p. 46) and another case of the same name to be found at p. 139 of the same volume. The Court has also been referred to Reina v. Landeskreditbank Baden-Würtemberg 7 and Chanel v.Cepeha 8 , and to the Bosch v. Van Rijn 11 which was the first case ever referred to that court under article 177 of the Treaty. These cases are of interest as showing the views that were expressed by the Court of Justice in examining the question as a question of Community law. I do not seek to rely upon any of the statements in those cases because, for the reason I have already given, this matter must be decided as a question of Irish law.
For the reasons I have given, I am of opinion that no appeal lies in the present case and, therefore, the Court has no jurisdiction to entertain it. Therefore, the appeal ought to be dismissed for want of jurisdiction.
Hederman J.
I agree with the reasons stated by Mr. Justice Walsh.
Price Waterhouse Cooper (A Firm) -v- Quinn Insurance Ltd (Under Administration)
[2017] IESC 73 (12 December 2017)
Judgment
Title:
Price Waterhouse Cooper (A Firm) -v- Quinn Insurance Limited (Under Administration)
Neutral Citation:
[2017] IESC 73
Supreme Court Record Number:
79/2017
Court of Appeal Record Number:
2015 CofA 525
Date of Delivery:
12/12/2017
Court:
Supreme Court
Composition of Court:
Clarke C.J., O’Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., Charleton J., O’Malley Iseult J.
Judgment by:
O’Donnell Donal J.
Status:
Approved
Result:
Other
SUPREME COURT
79/2017
Clarke C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
BETWEEN/
Price Waterhouse Cooper (A Firm)
Appellant
AND
Quinn Insurance Limited (Under Administration)
Respondent
Judgment of O’Donnell J. delivered the 12th of December 2017.
1 The defendants in these proceedings (“PWC”) seek leave to appeal against one aspect of the decision of the Court of Appeal delivered on the 21st of March 2017, in which that court reversed the decision of the High Court (Costello J) in which she directed that the plaintiffs (“QIL”) provide full and better particulars which were repeated in identical form in respect of the underwriting years 2005, 2006, 2007, and 2008. The relevant particulars are those set out at paragraph 34 of the judgment of the Court of Appeal as follows:
“In respect of the alleged understatement of each accident year within each class within each geographic region at 31 December 2005, please specify the reasons and the financial effect of each reason for the alleged understatement identified by the plaintiff in its re-estimation of the plaintiff’s technical provisions.”
This was replied to as follows:
“The plaintiff’s case has been adequately pleaded. This is an inappropriate interrogation as to matters properly for evidence, including expert evidence, at the trial of the action.”
PWC now seek to paraphrase that request in the following terms:
“What do you, QIL, say are the errors in your own estimates of the technical provisions, attested to by your own actuary and approved by your own board?”
If this is an accurate paraphrase, then the reference to QIL’s own estimate, actuary and board can be removed and the particulars requested can be reduced to “what do you, QIL, say are the errors in your … estimates of the technical provisions?” In the course of argument the plaintiffs took issue with the accuracy of this paraphrase and that will in due course be an issue for the hearing, but however phrased, it is clear that the issue raises in a relatively clear and concise way, and in substantial litigation where it can be said that pursuit of such issues may be justified, a net issue, as to the entitlement to particularisation of a claim.
Background
2 The facts of this case have already been set out in detail in the judgment of the High Court and the Court of Appeal and it is not necessary to repeat them here for the purposes of this application. It is sufficient to say that the plaintiff company, QIL, was a very substantial insurance company in the household and motor insurance market. In 2010 the High Court appointed administrators to the business. By the time of the Court of Appeal judgment, there was a deficit of €1.6 billion. The business of QIL has been sold by the administrators (so that the remaining asset of the company is the entitlement to bring these proceedings).
3 The defendants, PWC, were the auditors of QIL during the relevant years. The technical provisions referred to in the request for particulars are in substance the estimate made by an insurance company as to its future liabilities. This is required to be produced with the assistance of actuarial advice. In this case QIL retained an international firm of actuaries Milliman’s to perform this function. When the company went into administration the administrators retained the services of Mazars to carry out a review of the technical provisions. Mazars concluded that on an overall basis the technical provisions had been understated in each of the relevant years, with it is now alleged, a consequence that QIL engaged in certain transactions with associated businesses which it would not have done, and failed to remedy its financial position when that was possible. In summary, it is said that QIL suffered up to €800 million of damage. It is agreed that the proceedings are complex, and will be time consuming, and could run for more than a year. It is suggested that discovery will run to tens of millions of documents.
4 The nub of the difference between the High Court and the Court of Appeal can be discerned from the following passages from the judgment. At paragraph 43 of the High Court judgment, Costello J said:
“It can fairly be said that the pleadings set out the case to be advanced against the defendant in relation to its alleged wrongdoing. However it is not clear from either the pleadings or the particulars furnished to date precisely what the plaintiff says was wrong with the Technical Provisions as calculated by the plaintiff and Milliman in the Material Period. It is common case that the plaintiff will first have to establish that these estimates were materially underestimated. In order for the defendant fairly to meet this case, I am of the opinion that it needs particulars of why the plaintiff alleges the Technical Provisions were in fact materially underestimated.”
This conclusion was the only aspect of the High Court judgment reversed by the Court of Appeal. At paragraph 38 of his judgment, and having quoted the passage just cited, Hogan J in the Court of Appeal held:
“In my judgment, however, viewing the matter both from the standpoint both of practice and existing authority it would be hard to see how requests of this kind could be accommodated within the ordinary parameters of a notice for particulars. The pleader in a standard personal injuries action is not required, for example, to explain why the driver of the motor vehicle which caused the crash was driving too fast or why he failed to keep a proper look-out immediately prior to the accident. The gist of such a claim, after all, is that the defendant was in fact negligent by driving too quickly and by failing to keep a proper look-out. While it is true that, as I have already noted, Baker J. observed in Playboy Enterprises that the scope and range of admissible particulars in complex commercial litigation is naturally more extensive and broad-ranging than in straightforward personal injury actions, the general principle to which I have adverted nonetheless holds true.”
5 PWC now seeks leave to appeal to this Court from the determination of the Court of Appeal that such particulars were not required to be ordered. An application for leave was made on the 24th of November 2016 and was responded to on the 7th of June 2017. The Court directed an oral hearing of the application and further directed that written submissions be exchanged.
Decision
6 The 33rd Amendment to the Constitution inserted new provisions in the Constitution under which the appellate jurisdiction previously exercised by the Supreme Court was transferred to the newly established Court of Appeal. Thus, Article 34.4.1 is in identical terms to the previous provisions of that Article when dealing with the jurisdiction of the Supreme Court prior to the amendment. Accordingly Article 34.4.1 now provides that the Court of Appeal shall have appellate jurisdiction from all decisions of the High Court and such other decisions of other courts prescribed by law, and that no law may be enacted excepting from the appellate jurisdiction of the Court of Appeal cases involving the validity of any law having regard to the provisions of the Constitution. It is also provided by Article 34.4.3 that the decision of the Court of Appeal “shall be final and conclusive, save as otherwise provided by this Article”. Article 34.5 then sets out the new jurisdiction of the Supreme Court which makes provision for those cases in which the decision of the Court of Appeal is not final, and also those cases in which appeal from the High Court to the Supreme Court may be permitted. For present purposes it is only necessary to consider the provisions of Article 34.5.3 dealing with appeals to the Supreme Court from the Court of Appeal. It is provided as follows:
“The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that-
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.”
7 There is a large measure of agreement between the parties as to the meaning and effect of these provisions. Both parties are agreed that it is significant that the terms of Article 34.5.3 do not contain any reference to a “point of law” of general public importance, and furthermore that the importance of the issue is described as of only “general” public importance rather than exceptional, and in both these respects differs from the provisions of s 29 of the Courts Act 1924 (as amended) which permitted appeal from the old Court of Criminal Appeal to the then Supreme Court. It is also agreed that the application involves an interlocutory matter, and that the principles for the ordering of further particulars is now well known. However, the parties differ as to whether a decision in this case raised any matter of general public importance or that it was otherwise in the interests of justice that there be an appeal to the Supreme Court. It is convenient to deal with these matters in reverse order to that in which they appear in Article 34.5.3.
8 In relation to the criterion set out at 34.5.3 (ii), “the interests of justice”, the parties differed sharply as to their interpretation. On behalf of PWC it was contended that these were broad words of general application. They were words of indeterminate reference such as those often used in statutes or decisions like “fairness”, “reasonableness”, “non arbitrariness”, “clean hands” etc. It was argued that it was not possible to logically deduce from such terms what they were intended to cover, and it was a matter for the court in the light of their experience to interpret and apply the provisions. The relatively broad terms of the constitutional amendment were contrasted with other possible limitations such as a decision which it was either “necessary” or “essential” in the interests of justice that a case be appealed to the Supreme Court as for example provided for in New Zealand, or that it involved a “point of law” of “exceptional” public importance, as in Section 29 of the Courts Act 1924 or in the case of the Privy Council, that criminal conviction be shown to demonstrate “some grave violation of the principles of natural justice”. By contrast it was said that the wording of the Irish Constitution was much more permissive. Accordingly, it was submitted that it was necessary simply for the court to form an initial prima facie view as to the possibility of error in the court below, and that it was said, would satisfy the interests of justice. While this might lead to much greater numbers of appeals than might have been anticipated, it was an inevitable consequence of the broad language employed in the Article.
9 This interpretation advanced by PWC cannot however be accepted as correct. The structure of the constitutional amendment clearly contemplates a system in which the default position is that all appeals will be determined finally by the decision of the Court of Appeal and where appeal to the Supreme Court will be exceptional. If the Constitution was to be interpreted in the broad manner contended for by PWC, then it seems almost pointless to require the court itself to grant leave for appeal since a court would in reality be limited to a consideration of whether an appeal could be said to be unstatable. Furthermore, to afford an interpretation of this breadth to Article 34.5.3 (ii) would have the effect of rendering Article 34.5.3 (i) redundant. The argument also erodes any conceptual distinction between error and injustice. The fact that a court might make a decision which a further court might consider to be an error, does not itself establish injustice. Indeed, if there were no limit to the appeals which could be taken, that in itself might be considered an injustice. It is not necessary or possible at this stage to outline all the circumstances in which the court might consider that leave should be granted in the interests of justice. However, it does appear that the category is best viewed as a residual category, that is, if a decision does not involve a matter of general public importance, it may nevertheless still be contended that it is in the interests of justice that it was necessary that there be an appeal to the Supreme Court. Some circumstances in which this test may be satisfied have arisen, or can be suggested. First, a point may be made by way of cross-appeal, which itself cannot amount to a matter of general public importance. Nevertheless it would be unjust to permit one party to appeal to the Supreme Court and restrict another party from cross-appeal because the respondent’s appeal point was not itself of general public importance. Similarly a point may be raised in a case which itself may not be of general public importance but which is necessary to permit an appellant to argue, since otherwise determination of the issue of general public importance may not resolve the case. A further example may be where the point the applicant seeks to advance relates to something which occurred for the first time in the Court of Appeal. It might be said in such circumstances that the interests of justice would be served by permitting an appeal to the Supreme Court even though the matter itself was not itself of general public importance. It would be foolish to attempt a conclusive list of such factors in the abstract; it is in the nature of the interests of justice criterion that it is sufficiently flexible to respond to the demands of the individual case. However the very fact that the applicants here rely solely on the alleged error of the decision of the Court of Appeal demonstrates that no such issue arises in this case.
10 It is necessary accordingly to consider the first limb of the constitutional test, that is whether the appeal involves a matter of general public importance. The Court has determined on a number of occasions that to satisfy this test it is necessary first that the point be stateable, and second that it should normally have the capacity to be applicable to cases other than that under consideration. It is possible that the subject matter of the case may itself be of public importance. These considerations are not exhaustive.
11 The appeal here is from an interlocutory decision. The Constitution does not exclude interlocutory appeals from the jurisdiction of the Supreme Court, or impose any restriction on them. Prima facie the same test is applied to such an appeal, as to an appeal after a full hearing and appeal, that is, that the leave will be granted where it is established that the appeal involves a matter of law of general public importance or it is otherwise in the interests of justice that an appeal should be heard. Some interlocutory appeals may themselves raise classic issues of general public importance such as the appropriate test for the grant of an interlocutory injunction which will be applicable in every application for such an injunction. Nevertheless, it will normally be the case that it would be more difficult to establish that an interlocutory appeal contains an issue of general public importance or that the interests of justice are otherwise engaged. This is because it is in the nature of interlocutory orders that they rarely set a course irrevocably and dictate the outcome of the case. Appeals in interlocutory matters inevitably delay trial, and accordingly appellate courts are reluctant to interfere with the management of a trial, preferring to see a trial concluded and if necessary appealed, unless it is clear that a distinct and critical issue has arisen that requires to be addressed in advance of the trial. It is to be expected that it will be relatively rare that this Court will consider that the constitutional threshold has been met in an interlocutory appeal. However as already observed appeals in interlocutory matters are not excluded from the jurisdiction of the Court either expressly or by implication and in principle it is possible to demonstrate that an interlocutory appeal meets the constitutional threshold. Furthermore, where an appeal seeks to challenge the application of the High Court or Court of Appeal of well established principles of law which are not themselves the subject of challenge, as this appeal does it will also be rare that this Court could be persuaded to grant leave to appeal. See, for example, the Court’s determination in DPP v S [2017] IESCDET 134. On its face therefore this application faces significant hurdles.
12 However, this case presents an issue in a particularly clear way, given the scale of the litigation, and the engagement of the parties. Although the case law on ordering further particulars is well known, the application of the principles set out in the case law has led to diametrically opposed results on this issue between the High Court on the one hand and the Court of Appeal on the other. Furthermore, while acknowledging the view advanced in the High Court case as to the necessity for more detailed particulars in complex commercial litigation, the argument in the Court of Appeal ultimately appears to have resolved itself to the application of principles in simple personal injuries actions. These matters suggest a degree of uncertainty as to the application of principles relating to the delivering of further particulars. The distinction between matters which require to be pleaded in advance and those which are matters of evidence may be easy to state, but as this case shows is more difficult to apply. A principle may be generally accepted but stated at such a level of generality that the application of the principle in a particular type of case may itself be a matter of general public importance The question of the degree of particularisation which is necessary, is one which affects all litigation, and is therefore of general application . Also the decision in this case does not involve, as many decisions do, an area of discretion upon which judges may reasonably differ: in theory at least there ought to be a clear distinction capable of being drawn between matters of evidence and matters which have to be particularised. Furthermore this case involves particulars sought of something done or not done by or on behalf of the Plaintiff rather than a particularisation of an allegation made by the Plaintiff in relation to the conduct of the Defendant and a question may arise as to the proper application of the principle in that context. The Court considers therefore that the proper application of the principles relating to the ordering of further particulars is a matter of general public importance and that the outcome of this case may clarify the distinction between evidence and further required particularisation of proceedings. Accordingly, the Court will grant leave to appeal on the grounds of appeal specified at paragraph 6(1) of the application for leave.
Ahmed (a minor) -v- Longford Town Council
[2014] IESC 46 (17 July 2014)
Judgment Title: Ahmed (a minor) -v- Longford Town Council
Neutral Citation: [2014] IESC 46
Supreme Court Record Number: 367/11
High Court Record Number: 2010 8292 P
Date of Delivery: 17/07/2014
Court: Supreme Court
Composition of Court: Clarke J., MacMenamin J., Laffoy J.
Judgment by: Clarke J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No: 367/2011]
Clarke J.
MacMenamin J.
Laffoy J.
Between/
Usaman Ahmed (a minor suing by his father and next friend Mohammed Iqbal)
Plaintiff/Appellant
and
Longford Town Council
Defendant/Respondent
Judgment of Mr. Justice Clarke delivered the 17th July, 2014.
1. Introduction
1.1 Usaman Ahmed is now 15 years of age. When he was ten, on the 10th May, 2009, he was playing with his siblings at a children’s playground in Longford town maintained by the defendant/respondent (“Longford Town Council”). While he was playing on a swing he fell and landed, at least in part, on a hard divider which was placed at the sides of rubber matting to mark the edge of a landing area. As a result he suffered a fracture of his left humerus and a greenstick fracture of his left distal radius. In substance the case in negligence made on behalf of Usaman Ahmed was first that the swing seat was set too low (by 20 millimetres) which was said to have caused him to catch his foot on a downward swing thus in turn leading to his fall and second, that the distance from the swing seat to the edge of the rubber matting of the landing area was insufficient so that the edge of the matting and, thus, the hard edge should, it was said, have been further away from the swing itself. It was submitted that both of those features deviated from appropriate standards, amounted to negligence or breach of the appropriate standard of care and that both factors contributed to the accident and the injuries.
1.2 In the High Court the proceedings were dismissed on the question of liability. An appeal has been brought to this Court against that finding. In order to properly understand the grounds of appeal relied on at the hearing, it is necessary to identify the reasoning of the trial judge in reaching his conclusions on liability.
2 The Judgment
2.1 The case was heard before by deValera J. on the 26th July, 2011. In his judgment the trial judge noted that it was common case that there were two deviations from an appropriate standard being a reference to the height at which the swing seat was fixed and the distance from that seat to the edge of the landing area. The relevant standard was BS EN 1176-2: 2008 on Playground Equipment and Surfacing. This standard embodies recommended minimum standards at both British and European level.
2.2 The trial judge noted the evidence of Dr. Richard Webb who indicated that he had inspected the playground. Dr. Webb had given evidence that he considered the deviations in question to be, as the trial judge put it, “too minor to be of sufficient significance to do anything about them”. The trial judge also noted the evidence given by a consulting engineer, Mr. O’Brien, called on behalf of Usaman Ahmed. The trial judge clearly preferred the evidence of Dr Webb as to whether it was foreseeable that, as a result of the identified and admitted deviations to which reference has been made, an accident might occur. The trial judge placed significant reliance on the fact that the playground had, apparently, been in use for a reasonable period of time without any accident or incident occurring.
2.3 Having reviewed that evidence, deValera J. came to the conclusion that he was:-
“satisfied that the defendants in this case were not negligent, they took all appropriate steps in designing, in manufacturing, if that’s the correct word, or having built for them and in subsequently supervising the use of this particular facility. You can’t avoid accidents to children, I know this as a fact, it just can’t be done.”
2.4 On that basis the trial judge dismissed the claim. However, one further part of the trial judge’s reasoning emerged in the course of a debate between the parties as to the proper order for costs which should be made. In the course of that discussion the trial judge indicated that he should have included in his ruling a further finding that he was not satisfied that it had been established that there was any causal connection between the deviations identified and the actual accident which was the subject of the proceedings.
2.5 It follows that there were two key findings of the trial judge. First, the trial judge was not satisfied that there was any lack of appropriate care notwithstanding the deviations from standard which had been identified. Second, it is reasonable to infer that the trial judge took the view that, even if he was wrong in respect of that first issue, no causal connection with the actual accident and unfortunate injury suffered had been established. Clearly, in order to succeed on this appeal, it is necessary that it be established that both of those conclusions of the trial judge should be overturned for, in order for Usaman Ahmed to succeed in these proceedings generally, it would be necessary to establish both a breach of a duty of care and a causal connection between such breach and his accident and injuries. Against that background it is next necessary to turn to the appeal.
3. The Appeal
3.1 It is worth setting out the grounds of appeal in full:-
“1. That the learned trial judge misdirected himself on the law.
2. That the learned trial judge failed to have any sufficient regard to the weight of the evidence.
3. That the learned trial judge’s findings as to fact were perverse and contrary to the weight of the evidence.”
3.2 I will come to the written submissions filed in due course. Thankfully, those submissions convey some reasonable idea as to the basis upon which it is suggested that an appeal lies. It does have to be commented that the notice of appeal is completely deficient in giving even a hint as to the true grounds of appeal. It is said that the trial judge misdirected himself on the law but no clue as to how the trial judge was in error on the law is given. What law? In what way did the trial judge take a wrong view of the law? It is said that the trial judge did not have sufficient regard to the weight of the evidence. Likewise, it is said that the trial judge’s findings as to fact were perverse and contrary to the weight of the evidence. In the light of the well established jurisprudence of this Court deriving from Hay v. O’Grady [1992] 1 I.R. 210, it is difficult to see how, at least without much more, such a ground of appeal can lie. Was it to be said that the trial judge reached a finding for which there was no evidence or was it to be said that the trial judge made a clear error in his assessment of the evidence or is it said that some inappropriate inference was drawn? The notice of appeal gives no clue. In respect of what facts or inferences or conclusions is it said the trial judge came to an unsustainable finding? Again there is no clue. Indeed, it is very much open to the view that an application could have been brought to have the notice of appeal in this case dismissed on the grounds that it disclosed, on its face, no stateable basis for appeal.
3.3 It is striking that, almost a quarter of a century ago, in the State (Gallagher Shatter & Company) v. deValera [1991] 2 I.R. 198, Finlay C.J., giving the judgment of this Court, commented, at p. 202, as follows:-
“Grounds of Appeal
The notice of appeal in this case unfortunately does not contain specific grounds, but merely states in bald fashion that the judge misdirected himself and was wrong in law and in fact in allowing the sums claimed and in ordering and adjudging them to be allowed, and contains as a purported second ground “such further grounds as will be presented to this Honourable Court on the hearing of the appeal”.
These are not grounds of appeal as was pointed out by the Court during the course of the hearing, and I would like in this judgment to emphasise again that whereas, as occurred in this case, it may be necessary in the interests of justice to permit the prosecution of an appeal, even though no specific grounds have been put forward, what appears to be an expanding practice of submitting grounds of appeal to this Court which contain no more than a mere statement of grievance with an order of the High Court should be discontinued.”
3.4 It really does need be noted by legal representatives of parties wishing to appeal to this Court that the time has long since passed when it is acceptable to express the grounds of appeal in such vague and generalised terms that they give no clue as to the true basis on which it is intended to argue that the judgment of the High Court was incorrect. Likewise, although given its sparseness it is not a criticism which could be made of the notice of appeal in this case, the time has long since passed when it could be considered appropriate to draft a notice of appeal that almost goes through the judgment of the trial judge as if it were a pleading and, point by point, almost in the manner of a defence which amounts to a full traverse, states that each point is wrong without giving any real indication of why that is said to be the case.
3.5 There is a duty on those bringing appeals to this Court to at least make a reasonable attempt to identify the true basis of appeal and set out, in a concise, non-repetitive, and focused way the true grounds which are to be pursued. It is accepted that a notice of appeal requires to be drafted within a relatively short period of time. For that reason some leeway as to precise points of detail must be allowed. However, it must also be recognised that a notice of appeal is drafted very soon after the case is concluded when the issues ought be clear in everyone’s mind and the issues which it is considered justify an appeal ought, for like reason, be capable of reasonably precise identification. Appeals should not be filed unless the losing party has some identifiable basis for believing that they have a genuine appeal; otherwise it will be an abuse of process. But having identified some genuine basis for appeal, it is not too much to expect that the notice of appeal itself should set it out in a way which allows the respondent (and indeed, the Court) to at least have a reasonable picture as to what the appeal is all about.
3.6 Happily, as indicated earlier, the written submissions filed on both sides did bring greater clarity to the real issues which were likely to arise on the appeal although, for reasons which it will be necessary to address, one significant legal issue which appeared from the written submissions to be likely to be highly to be contentious did not feature at the trial because of a concession which was (most correctly, in the Court’s view) made by counsel for Longford Town Council at the oral hearing. I, therefore, turn to the written submissions.
4. The Written Submissions
4.1 The arguments put forward in favour of the appeal in the written submissions were, principally, the following:-
(a) It was said that the trial judge placed insufficient emphasis on the relevant standards and in particular attention was drawn to the fact that the trial judge used the phrase that they were “merely a standard”;
(b) it was said that the trial judge placed too much emphasis on the fact that the playground had been used without incident. It was suggested that a reference in his judgment to its use by hundreds of thousands of children was incorrect whereas the evidence referred to thousands with emphasis also being placed on the fact that the evidence established that the playground had been open for four years and that it was conceded that there might have, in that time, been many falls which did not give rise to injury;
(c) it was argued that a proper analysis of the evidence could lead only to the conclusion that there was a failure to meet an appropriate standard of care and that such failure caused the accident in question.
As these matters were elaborated further in the course of oral argument I will return to them in due course.
4.2 In their written submissions Longford Town Council addressed the standard of duty on the owner of a recreational facility. Reference was made to Weir-Rogers v. SF Trust Ltd [2005] 1 I.R. 47, in which Geoghegan J., in this Court, considered the consequences of the enactment of the Occupiers Liability Act, 1995 (“the 1995 Act”) for the potential liability of owners of property in relation to recreational users. It was suggested that the effect of the criteria set out in s. 4(2) of that Act created a significantly more onerous threshold for a plaintiff. On that basis it was submitted that there was no evidence before the High Court which could have led to a proper conclusion that Longford Town Council had acted in such a way as allowed this case to meet that higher threshold.
4.3 However, at the oral hearing, as already noted, a concession was made. Counsel accepted that the proviso contained in s.4(4) of the 1995 Act applied. Under that provision the general effect of subs. (1), which is indeed to significantly increase the threshold by reference to which an occupier can be found liable, does not apply “where a structure on premises … for use primarily by recreational users” is present. In such a case the occupier owes a duty to recreational users “to take reasonable care to maintain a structure in a safe condition”. While not conceding that s.4(4) is necessarily, in all cases, identical as to the duty which it imposes on occupiers to the common law duty, counsel accepted that, on the facts of this case, there was no material difference between the two tests.
4.4 Indeed, it is worthy of note that it does not appear that any case for a particularly enhanced threshold was advanced by Longford Town Council in the High Court. Be that as it may, there was, in reality, no significant difference between counsel as to the appropriate approach of the Court to the facts of this case. The test was either, as counsel for the plaintiff argued, the common law test, or, as counsel for Longford Town Council suggested, a reasonable care test under s.4(4) of the 1995 Act with neither counsel arguing that there was any significant practical difference between the application of the two tests at least so far as this case was concerned.
4.5 As to the facts, it was said on behalf of Longford Town Council that the trial judge was entitled to accept the evidence of Dr. Webb to the effect that any deviation from standard was too minor to be of sufficient significance to take action, and it was also argued that there was evidence from which it was open to the trial judge to conclude that there was no causal connection between any deviation from standard and the accident and injuries suffered in this case.
4.6 Thus, in the light of the written submissions and the adjusted position taken by Longford Town Council at the oral hearing, the real issues which remain for decision were as to whether, in the light of the principles identified in O’Hay v. Grady, there was evidence from which the trial judge could reach a sustainable conclusion both as to the materiality of the undoubted deviations from standard (in the context of whether reasonable care can be said to have, nonetheless, applied) and as to causation. I propose to turn to the question of causation first, for if the decision of the trial judge in that regard was sustainable then the appeal would necessarily fail irrespective of the position in respect of the extent of the duty of care.
5. Causation
5.1 It is necessary to consider the issue of causation separately in relation to both of the deviations from standard identified. For the purposes of this analysis I propose to assume, for the purposes of the argument and without so deciding, that it was negligent or in breach of a statutory obligation to use reasonable care for Longford Town Council to permit the playground to operate with swings which deviated from standard in the manner identified. The analysis is as to whether there was evidence, or absence of evidence, from which the trial judge could properly conclude, nonetheless, that such deviation or deviations did not cause or contribute to the accident.
5.2 There was some debate at the oral hearing as to the evidence concerning how the accident actually occurred. Usaman Ahmed gave clear evidence that the immediate cause of his fall from the swing was that he hit his leg off the ground. In the course of their evidence both Mr. O’Brien and Dr. Webb agreed that such was the probable cause of his fall. There was no evidence to suggest that he was engaged in any form of inappropriate activity on the swing. In any event there was no finding by the trial judge which rejected his evidence in that regard. It seems to me to follow, as was urged by his counsel, that the only evidence which was before the Court was to the effect that the accident occurred as he described.
5.3 However, counsel for Longford Town Council suggested that there was an absence of compelling evidence which connected the undoubted deviation from standard as to seat height with the accident as described. It must be recalled that questions of causation are questions of fact. Where an issue as to causation arises it is for the trial judge to determine, on the balance of probabilities and as a matter of fact, whether any established or alleged wrongdoing on the part of a defendant actually caused the alleged harm to the plaintiff. In the context of a case such as this, it was for the trial judge to decide, as a matter of fact, whether the deviation from standard (if it was established to amount to negligence or a lack of appropriate care) actually caused or contributed to the accident and injuries which are the subject of these proceedings. The role of an appellate court in considering such a finding of fact is clear.
5.4 In Hay v. O’Grady McCarthy J. delivered the unanimous decision of this Court and dealt with the role of an appellate court in relation to facts. In particular, at p. 217, McCarthy J. set out a number of propositions which define the respective roles of a court of first instance and an appellate court in relation to factual findings. At item 2 the following is stated:-
“If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous, and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.”
5.5 The judgment goes onto make some comments concerning inferences from primary fact and in particular observes that the extent to which an appellate court should interfere with inferences from facts may depend on the extent to which those inferences may themselves have been influenced by a judge’s assessment of witnesses (as opposed to, for example, matters deriving from documentary evidence).
5.6 It is also appropriate to note what this Court said in Doyle v. Banville [2012] IESC 25, where, having analysed Hay v. O’Grady, the following is said at para. 2.7 of my judgment:-
“Finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge’s view.”
5.7 Thus, the proper approach of an appellate court to a question of primary fact is to determine whether there was any significant and material error in the way in which the trial judge reached a conclusion as to that fact on the evidence and, if there is not, to leave that finding of fact undisturbed provided that it was supported by credible evidence even if there was other evidence to the contrary. It is as against those principles that the finding of the trial judge in this case to the effect that he was not satisfied that causation had been established needs to be assessed.
5.8 In that context a number of facts need to be noted. First, the deviation from standard was 20 millimetres. For those less attuned to the metric system in its detail that is a distance of approximately 4/5 of an inch. On the question of causation the real issue is as to whether it was open to the trial judge to conclude that a causal link between such a small difference in the seat height and this particular accident had not been established. In the context of the argument concerning whether there had been a breach of any duty of care counsel for Usaman Ahmed had made significant play of the fact that standards, particularly in the context of children’s playgrounds, are designed to create a reasonable balance between the need for children to be able to play in a free and happy environment but also safely. In addition, in the context of swings, a balance between not having the seat too high for younger (and therefore, on balance, shorter) children with not having the seat too low for older (and on balance, taller) children needed to be struck. On that basis it was sought to argue that a seat height which was too low created a potentially increased risk for taller children, for this case does, indeed, involve a tall child. Whatever may be the merits of that argument, it seems to me that there is a separate question as to whether, in the circumstances of this accident, the evidence constrained the trial judge to find a causal connection between the 4/5 of an inch seat height deviation and the fall.
5.9 Second, it must be recalled that, on any view, the swing had been in use for some time (approximately four years) and had been used before the day in question by Usaman Ahmed and also used by him for some period of time before the accident actually occurred. In those circumstances it necessarily follows that there must have been something different about the way in which he was positioned on the swing when he fell as opposed to all previous occasions (including the earlier part of his use of the swing on the day in question) when no such problem had arisen. The real question on causation which arises is as to whether, as a matter of probability, an extra 4/5 of an inch would have made any difference on the day in question.
5.10 Much of Mr. O’Brien’s evidence was directed towards the question of whether such a small difference could be said to have increased the risk. But whether it increased the risk or not does not answer the question of whether it, as a matter of probability, caused or contributed to this actual accident. If, for example, the way in which the swing was being used at the immediate point of the accident was such that, unfortunately, the ground would have been clipped anyway in a sufficiently serious way to cause a fall in much the same manner as occurred, even if the seat had been 4/5 of an inch higher, then there would, in truth, be no causal connection between that deviation from standard and this accident. Having carefully reviewed the transcript, I am not persuaded that this issue of causation was addressed in the expert evidence on both sides in a way which constrained the trial judge to find that there was a causal link. It might well have been open to the trial judge to reach such a conclusion. He was not, however, in my view, bound to come to that view.
5.11 For those reasons I am satisfied that the trial judge was entitled, on the evidence, to reach the conclusion, on the balance of probabilities, that the 4/5 of an inch deviation from standard in the seat height did not cause or contribute to this accident.
5.12 So far as the extent of the rubber matting issue was concerned, Dr. Webb, in giving his evidence, referred to recent research which seemed to show that the principal benefit of rubber matting was in the reduction of significant head injuries. Dr. Webb referred to research conducted by Prof. David Ball, who is Head of Risk Management at Middlesex University. Dr. Webb gave evidence that studies conducted by Prof. Ball seem “to show … that the incidents of head injuries has decreased but there hasn’t been any significant fall off in long bone fractures…” Again, the principal focus of the cross-examination of Dr. Webb seemed to relate to whether, in the light of that research, it was reasonable to ignore a relatively small (approx. three inch) divergence from the recommended distance between the swing seat and the edge of the matting. However, that evidence was also relevant to the question of causation. If it is the case, as that research by Prof. Ball seems to suggest, that matting does not seem to have led to a significant reduction in long bone injuries, it was, in my view, open to the trial judge to take the view that it did not necessarily follow from the fact that Usaman Ahmed fell slightly outside the matting area that, as a matter of probability, he would not have suffered the same or broadly similar injuries had the mat area been three inches wider.
5.13 The plaintiff’s case, as put through Mr. O’Brien, almost seemed to suggest that this was axiomatic. Falling onto a harder and unmatted surface was likely, it was said, to have led to very different injuries than if the fall was onto a matted area. However, the relevant research seems to cast significant doubt on that proposition. There also was no medical evidence which might have been of some assistance in determining whether it was probable that these injuries were attributable to falling outside as opposed to inside the matted area and, indeed, if that be so, whether significant injuries were likely to have arisen even if the fall had occurred completely within the matted area.
5.14 In the light of that review of the evidence I am satisfied that it was open to the trial judge to conclude that a causal connection between the scale of the matted area and the injuries actually suffered in this case had not been established.
5.15 In those circumstances I am satisfied that the finding of the trial judge, to the effect that no causal link between the two deviations from standard identified and the accident and injury actually suffered in this case, had been established on the balance of probabilities, was a finding which was open to the trial judge on the evidence. In the light of that finding the question of whether, in the context of s.4(4) of the 1995 Act, there was any actionable lack of reasonable care deriving from those deviations from standard is no longer relevant.
5.16 In fairness to the case made it is important to emphasise that there was credible evidence put forward on behalf of the plaintiff which could have persuaded the trial judge to find in his favour on the question of causation. This case is far removed from the type of proceeding which fails because the Court disbelieves an account of an incident given by a plaintiff. The problem in this case was that Longford Town Council also proffered credible expert evidence consistent with an absence of causation. This was quintessentially a case where the trial judge had to choose between two expert views on that question of causation. Given that there was credible evidence for both sides on that issue, the decision as to which to prefer was ultimately a matter for the trial judge and cannot be disturbed unless there was a clear significant and material error in the trial judge’s approach. It was, of course, therefore, a case where the trial judge could have accepted the evidence of either expert. In the light of the fact that there were undoubted deviations from standard, there was clearly a stateable basis for seeking to put forward the claim in these proceedings. It is simply that there was also a stateable defence on the facts in relation to causation and the trial judge was entitled to prefer the expert evidence which formed the basis of that stateable defence.
6. Conclusions
6.1 For those reasons I am satisfied that it was open to the trial judge to make the finding concerning lack of causation which he did. It follows that the issues concerning the duty of reasonable care do not arise for, in the absence of a causal link, even if it were possible to overturn the trial judge’s determination on those matters, it would not avail the case made on behalf of Usaman Ahmed.
6.2 For those reasons I would uphold the decision of the trial judge and dismiss the appeal.
Kincaid v. Aer Lingus Teoranta
[2003] IESC 31 (9 May 2003)
THE SUPREME COURT
McGuinness J.
Geoghegan J.
McCracken J.
106/03
BETWEEN/
MARIA KINCAID
Plaintiff/Respondent
and
AER LINGUS TEORANTA
Defendant/Appellant
JUDGMENT of Mr. Justice Geoghegan delivered 9th of May 2003 [Nem Diss]
1. In recent years a welcome innovation has been introduced into personal injury litigation. There is now a requirement that the parties exchange expert reports where it is intended to call the relevant expert as a witness. It seems to have been decided by the powers that be that neither amended rules of court nor still less a practice direction would be sufficient for the enforcement of such new arrangement. Because of its effect on the long standing legal principles of privilege in relation to documents prepared for the purposes of litigation a statutory backing was required. Hence the enactment of section 45 of the Courts and Court Officers Act, 1995 which will be cited later on in this judgment. That section empowered the Superior Courts Rules Committee and the Circuit Court Rules Committee to make rules requiring disclosure between the parties of any report or statement from any expert intended to be called to give evidence of medical or paramedical opinion in relation to an issue in the case. The section also contained analogous provisions relating to other kinds of experts’ reports and certain kinds of particulars and information appropriate to be exchanged. Apparently, it proved difficult to draft satisfactory rules pursuant to this section but the current rules and those which are relevant to this appeal are contained in the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements), 1998 (S.I. No. 391 of 1998). These are new rules (45-51) inserted into Order 39 of the Rules of the Superior Courts. The new Rule 45 contains a number of definitions including a definition of “report”. But it is Rule 46 which is relevant to this appeal. In order to explain how the appeal arises and what the issues are I think it essential to cite the entire rule which reads as follows:
“46. (1) The plaintiff in an action shall furnish to the other party or parties or their respective solicitors (as the case may be) a schedule listing all reports from expert witnesses intended to be called within one month of the service of the notice of trial in respect of the action or within such further time as may be agreed by the parties or permitted by the court.
Within seven days of receipt of the plaintiff’s schedule, the defendant or any other party or parties shall furnish to the plaintiff or any other party or parties a schedule listing all reports from expert witnesses intended to be called. Within seven days of the receipt of the schedule of the defendant or other party or parties, the parties shall exchange copies of the reports listed in the relevant schedule.
(2) The parties in an action shall exchange with the other party or parties or their respective solicitors (as the case may be) the information and statements referred to in section 45(1)(a)(iii), (iv) and (v) within one month of the service of the notice of trial or within such further time as may be agreed by the parties or permitted by the court.
(3) In any case where a party or his solicitor certifies in writing that no report exists which requires to be exchanged pursuant to sub-rule (1), any other party shall, on the expiry of the time fixed, agreed or permitted as the case may be deliver any report within the meaning of the section to all other parties to the proceedings.
(4) Any party who, subsequent to the delivery required by sub-rule (1) above, obtains any report within the meaning of the section or the name and address of any further witness, shall forthwith deliver a copy of any such report or statement or details of the name and address of such witness (as the case may be) to the other party or parties or their respective solicitors (as the case may be).
(5) Service of any report, statement or information required to be exchanged or delivered may be effected by letter in writing enclosing the report, statement or information required to be delivered by virtue of the section and may be sent by ordinary prepaid post or in any other manner in which service is authorised by these rules. Such letter shall specifically state that the service is for the purpose of complying with the requirements of section 45 of the Act and these rules. The court may on application to it by any party to an action or of its own motion require that an affidavit or affidavits be filed by any party in relation to proof of disclosure and service required by these rules in any case in which it appears to the court necessary so to do.
(6) Any party who has previously delivered any report or statement or details of a witness may withdraw reliance upon such by confirming by letter in writing that he does not now intend to call the author of such report or statement or such witness to give evidence in the action. In such event the same privilege (if any) which existed in relation to such report or statement shall be deemed to have always applied to it notwithstanding any exchange or delivery which may have taken place.”
2. In this personal injury action what happened was that the defendant/appellant included in its schedule of witnesses and reports pursuant to the rules a medical report of Mr. Niall Mulvihill, a well-known orthopaedic surgeon. The plaintiff/respondent furnished copies of all her listed reports. The defendant/appellant furnished copies of all its listed reports but omitted the report of Mr. Mulvihill. This was because by letter dated the 18th of April, 2002 and before furnishing copies of listed reports the appellant informed the respondent that Mr. Mulvihill would not now be called as a witness and that that being so there was no longer any obligation to furnish a copy of his report. The respondent on the other hand says that the appellant is not entitled to withdraw reliance on Mr. Mulvihill for the purposes of the disclosure rules until after it has first furnished to the respondent copies of all the reports listed in the schedule. According to “counsels’ note for appeal” which purports to include the submissions made in the High Court and a note of the ex tempore judgment of the learned High Court judge (Kearns J.) and which has been approved by him, the respondent conceded that the appellant was entitled to withdraw reliance on a report listed in the appellant’s schedule under Rule 46(6) but the respondent argued that this was only allowed after delivery of the report. In making this submission the respondent relied on a literal parsing of Rule 46(6). I think it would be fair to say that in the court below and in this court the main plank of the respondent’s argument is that that sub-rule should be construed as actually prohibiting a party from withdrawing reliance on a report included in a schedule until after the report has been delivered. I believe, for reasons which I will indicate, that that interpretation is fallacious. But before I elaborate on why I am of that view, I think it desirable to refer to the actual judgment of the learned High Court judge. He found that it was not an “easy call to make” and that O. 39, r. 46 seemed to contain conflicting provisions. But the learned judge came down in favour of the plaintiff/respondent on the grounds that the rules were intended to provide for “an element of mutuality which would guarantee transparency between the parties” and he seems to have considered it to be contrary to the intentions of the Rules-making Committee that one side could see the report of another and then, perhaps on foot of what it saw, withdraw reliance on a witness included in its schedule of reports and on the report itself. As I will endeavour to explain, it does not necessarily follow on the wording of the rules that that abuse, if it is an abuse, could necessarily be achieved but even if it were so it is not in my opinion relevant to the question at issue. The purpose of the rules is not to disclose the strengths and weaknesses of each other’s case but rather to prevent surprise evidence being thrown up at a trial which the other party at that stage is unable to deal with.
3. I return now to the interpretation of Rule 46(6). I cannot agree that it means that a party is prohibited from withdrawing reliance unless he has previously delivered the report. The sub-rule in my opinion is not prescribing any such thing. Rather, it is trying to cope with the situation which would arise if, after delivery of such a report, the party who has delivered it decides he is no longer going to rely on that witness. The report, even though by that time it has got into the hands of the opposing party, is nevertheless to be deemed to have been privileged from the beginning. The situation which has arisen in this case is simply not expressly covered by the rule. With all respect, I do not necessarily agree with the learned High Court judge that there is a conflict in the rules. It seems to me that it is more a question of there not being an express provision to cover every eventuality. The fact that there may be no express provision dealing with the point which has arisen in this case does not mean that the rules cannot be interpreted as implicitly covering the problem. This would seem to be particularly so in the light of the fact that the rules are made pursuant to a special statutory provision. Clearly, if the rules did not exist Mr. Mulvihill’s report would be a privileged document in the hands of the appellant and the respondent would have no right to see it. What Rule 46(6) is dealing with is the problem which arises when a privileged document is in fact in the hands of another party. That is not the case here.
4. So as to apply a proper interpretation to the rules to cover the actual situation which has arisen, it is necessary to look to the underlying statutory provision and, therefore, I intend to cite in full the relevant part of section 45 of the 1995 Act, that is to say, section 45(1)(a). That part reads as follows:
“45.—(1) Notwithstanding any enactment or rule of law by virtue of which documents prepared for the purpose of pending or contemplated civil proceedings (or in connection with the obtaining or giving of legal advice) are in certain circumstances privileged from disclosure, the Superior Courts Rules Committee, or the Circuit Court Rules Committee as the case may be, may, with the concurrence of the Minister, make rules—
( a ) requiring any party to a High Court or Circuit Court personal injuries action, to disclose to the other party or parties, without the necessity of any application to court by either party to allow such disclosure, by such time or date as may be specified in the rules, the following information, namely—
(i) any report or statement from any expert intended to be called to give evidence of medical or para-medical opinion in relation to an issue in the case;
(ii) any report or statement from any other expert of the evidence intended to be given by that expert in relation to an issue in the case;
(iii) the names and addresses of all witnesses intended to be called to give evidence as to facts in the case;
(iv) a full statement of all items of special damage together with appropriate vouchers, or statements from witnesses by whose evidence such loss would be proved in the action;
(v) a written statement from the Department of Social Welfare showing all payments made to a plaintiff subsequent to an accident or an authorisation from the plaintiff to the defendant to apply for such information; and
(vi) such other relevant information or documentation (as may be provided for by rules of court) so as to facilitate the trial of such personal injuries actions;…”
5. It should be noted that in the case of each of the categories of information whether documentary or otherwise required under (i) to (vi) above they are each by their express wording directed towards the hearing of the action. The only kind of report or statement from any expert that is required is a report or statement from an expert “intended to be called to give evidence” in the case of a medical witness or in the case of a non-medical expert a report or statement of evidence “intended to be given by that expert”. Only the names and addresses of witnesses “intended to be called to give evidence” need be furnished. The statement of all items of special damages has to be furnished together with appropriate vouchers or statements “from witnesses by whose evidence such loss would be proved in the action.” It is obvious that the statement from the Department of Social Welfare is also required for the purposes of the action and, finally, the generic provision relating to “other relevant information or documentation” is such “as to facilitate the trial of such personal injury action”. It would seem to me, therefore, that the Oireachtas was not intending to give any power to the Rules-making Committees to alter the rules of privilege except in relation to evidence intended to be used at the hearing. Nor would it ever have been intended by the Oireachtas to prohibit a party from changing his mind as to whether he wanted to call a particular witness or not during some particular period within the pendency of an action. I must conclude therefore that once the defendant/appellant in this case changed its mind about calling Mr. Mulvihill it could not have been obliged thereafter to furnish Mr. Mulvihill’s report because the report was then a privileged document. If the rules were to be interpreted as providing otherwise I would be of opinion that the Rules-making Committee was acting ultra vires but I see no reason to interpret the rules in the way contended for by the plaintiff/respondent and I would, therefore, allow the appeal and set aside the order made by the learned judge of the High Court.
6. There is just one other observation which I think it relevant to make. The obligation under O. 39, r. 46(1) is to “exchange” scheduled reports. If a party’s solicitor ensures that the “exchange” is contemporaneous there is no danger of the so called “abuse” arising.
7. If each party’s solicitor ensures that an actual contemporaneous exchange of reports takes place there is no danger that the procedure can be abused in the manner suggested by the plaintiff.
Irish Life & Anor -v- Hanrahan & Anor
[2018] IECA 12 (05 February 2018)
Judgment
Title:
Irish Life & Anor -v- Hanrahan & Anor
Neutral Citation:
[2018] IECA 12
Court of Appeal Record Number:
2017 282
High Court Record Number:
2011 No 3699 S
Date of Delivery:
05/02/2018
Court:
Court of Appeal
Composition of Court:
Ryan P., Irvine J., Whelan J.
Judgment by:
Irvine J.
Status:
Approved
Result:
Motion for Extension of Time Refused
THE COURT OF APPEAL
Neutral Citation Number: [2018] IECA 12
Record No. 2017/282
Ryan P.
Irvine J.
Whelan J.
BETWEEN/
IRISH LIFE AND PERMANENT PLC TRADING AS PERMANENT TSB
PLAINTIFF/
RESPONDENT
– AND –
JOHN HANRAHAN AND SELINA HANRAHAN
DEFENDANTS/
APPELLANTS
JUDGMENT of Ms. Justice Irvine delivered on the 5th day of February 2018
1. This is the application of Mr. John Hanrahan, the first named appellant, to extend the time to permit him appeal an order of the High Court, Noonan J., made on the 25th April 2017. On that date the High Court judge granted judgment against him for a sum of €292,727. He further directed Mr. Hanrahan to pay the plaintiff’s costs when taxed in default of agreement. That order was perfected on the 16th May 2017.
2. In his proposed notice of expedited appeal Mr. Hanrahan maintains that in the High Court he demonstrated sufficient potential grounds of defence to warrant the proceedings being remitted for a plenary hearing. Second, he asserts that the trial judge paid insufficient regard to what he claims was admitted fraudulent conduct on the part of Ms. Susan Harte, a branch manager with Irish Life And Permanent PLC (‘the bank”), which caused himself and his wife, the second named defendant, irreparable loss and damage.
Background facts
3. The bank commenced proceedings against Mr. and Mrs. Hanrahan on the 1st September 2011. Its claim was on foot of an overdraft facility for the sum of €300,000 which it maintained it agreed with the defendants on the 10th November 2010 and which had expired on the 31st January 2011. It is not disputed that Mr. Hanrahan later requested the bank to renew that facility and that it declined to do so. Accordingly, by letter of demand dated the 1st June 2011 the bank made demand of Mr. Hanrahan for payment of all sums due in respect of the expired facility. As of the 1st June 2011 the balance outstanding was €232,189.25, comprising principal of €221,627.92 and interest of €10,561.33.
4. By notice of motion dated the 20th June 2013 the bank sought liberty to enter final judgment solely against Mr. Hanrahan for the sum of €292,727. That sum comprised a claim of €240,957.20 for principal and €51,769.80 for interest. That application was ultimately heard by Noonan J. in the High Court in April 2017 at which stage he had before him a number of affidavits and exhibits.
5. The principal affidavit relied upon by the bank in support of its application for judgment was that of Susan Harte sworn on the 18th June 2013 which set out what she described as the facility offered to the defendants on the 10th November 2010 and the terms and conditions attached thereto which included a solicitor’s undertaking that the net proceeds of any awards of damages made in favour of Mr. Hanrahan in High Court proceedings bearing record no. 2006 no. 1811p (John Hanrahan v. The Minister for Agriculture and Food) would be credited to the aforementioned account.
6. Ms. Harte, in her affidavit, detailed the circumstances in which Mr. Hanrahan on the 26th November 2010 had obtained an award of damages against The Minister for Agriculture and Food in the aforementioned High Court proceedings in a sum of €304,320 and how McMahon J. had refused to grant the Minister a stay on the full award he had made in favour of Mr Hanrahan pending appeal. He refused a stay in respect of the sum of €180,000 which he directed be paid by the Minister to Mr. Hanrahan with immediate effect. Ms. Harte explained that subsequent to the said judgment another creditor of Mr. Hanrahan, who had earlier obtained judgment against him, successfully garnisheed €90,000 from the sum of €180,000 which McMahon J. had directed be paid by the Minister to Mr. Hanrahan. On the 2nd February, 2011, the remaining €90,000 was paid by the Office of the Chief State Solicitor into Mr. Hanrahan’s bank account by way of electronic transfer and was thus credited to the overdrawn balance on the account.
7. Mr. Hanrahan, in an affidavit sworn by him on the 19th February 2014 set out the reasons while he maintained judgment should not be granted against him. He claimed that the affidavit of Susan Harte was an effort on the part of the bank to mislead the court. His wife had had no hand, act or part in the opening of the bank account the subject matter of the proceedings and neither had she been party to any agreement concerning overdraft facilities. According to Mr .Hanrahan her name was only on the account so that she would be in a position to withdraw cash to pay farm wages etc.. His second complaint was the failure of Ms. Harte to disclose to the court a copy of a letter which he had written to the chief executive of the bank, Mr. David Guinane, dated the 10th June 2011 concerning what he stated were the unexplained actions of Susan Harte in the running of his account which had caused him serious loss and damage. That letter was later exhibited in an affidavit sworn by the bank’s solicitor, Mr. Jason Kelly, on the 21st October 2013. I will return to this letter later in this judgment.
8. It should also be stated that the bank’s application for judgment was adjourned to await the outcome of an application made by Mr. Hanrahan for discovery which he maintained was necessary to establish why Ms. Harte had set out to mislead the court in her affidavit. That application was refused by Moriarty J. as being premature in the context of summary summons proceedings, a decision upheld by this court in an ex tempe judgment delivered by Kelly J. on the 10th June 2015.
9. As this is an application for an extension of time to appeal the decision of Noonan J. rather than the appeal against that order this court does not have a copy of his ruling as to the reason/s why he granted judgment against Mr Hanrahan. It can, however, be inferred from the fact that judgment was granted in favour of the bank on the 25th April 2017 that Noonan J. was not satisfied that he had demonstrated as a probability any bona fide credible defence to the within proceedings.
Extension of time to appeal
10. The order which Mr. Hanrahan now wishes to appeal was perfected on the 16th May 2017. Given that his appeal is what is classified as an expedited appeal he was obliged under the rules of court to have his appeal filed within ten days. In circumstances where he missed the ten day deadline, by notce of motion dated the 13th June 2017, he now asks this court to exercise its discretion and extend the time to permit him pursue his appeal.
11. The principles to be applied by the court on an application such as the present one are those which are identified in the judgment of Lavery J. in Eire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170. The following were identified as “proper matters” for the consideration of the court when asked to determine whether time should be extended, namely:-
(1) Has the applicant demonstrated that he had bona fide formed the intention to appeal within the permitted time?
(2) Has the applicant identified the existence of something like a mistake, which has had the result that the deadline for the filing of his appeal was missed?
(3) Has the applicant established a good arguable ground of appeal?
12. The bank does not dispute Mr. Hanrahan’s contention that he formed the intention to appeal within the permitted time limit and accordingly this first leg of the Eire Continental test does not need to be further considered. However, the bank does not accept that Mr. Hanrahan has established that his failure to discover that the order of the High Court was perfected on the 16th May 2017 was the result of any “mistake”. The bank maintains that the scant detail in Mr. Hanrahan’s affidavit is unsatisfactory and that the only reasonable conclusion for it to draw is that he failed to make proper enquiries and searches concerning the order in the period immediately following upon the 25th April 2017.
13. Notwithstanding the bank’s submission that Mr. Hanrahan should not be considered to have discharged the proof suggested in the second leg of the test in Eire Continental, I am satisfied that it would be unjust to deny Mr Hanrahan the extension of time he seeks by reason only of his less than satisfactory explanation as to why he did not become aware of the court order on the date it was perfected or in the days that immediately followed. In my view justice and fairness would suggest that on the facts of this case and having regard to the fact that Mr Hanrahan is a lay litigant, I should reach my conclusion on the current application based upon on the final leg of the test, namely, whether or not he has established the existence of a bona fide and credible defence to the bank’s claim, absent which time cannot be extended.
14. For the purposes of assessing whether or not Mr. Hanrahan can be stated to have demonstrated a bona fide and credible defence to the banks claim and hence an arguable ground of appeal against the decision of Noonan J. it is necessary to look at the evidence he has put before the court on affidavit.
Mr Hanrahan’s proposed defence
15. There is no doubt whatsoever that Mr. Hanrahan is deeply aggrieved and upset by the fact that his wife was named as a co defendant to the proceedings in circumstances where, on his account of events, her name was only added to the account concerned so that she might have access to cash to pay wages and discharge other expenses of the business. His sense of grievance is palpable from his affidavit and the fact that he requested that the application for summary judgment be postponed to enable him obtain discovery of documents which he hoped would clarify why it was Ms. Harte had set out to mislead the court about his wife’s involvement with the account, clearly demonstrates that this is so.
16. Mr. Hanrahan, however, fails to recognise the significance of the fact that the bank has not sought judgment against his wife. It issued its motion for judgment solely against him on the basis of the overdraft facility. For this reason it is also not important that Ms. Harte, as is apparent from her supplemental affidavit sworn on the 8th April 2014, does not accept Mr Hanrahan’s contention concerning his wife’s joint liability in respect of the overdraft facility and maintains that the account which had originally been in Mr Hanrahan’s sole name had been converted into a joint account on the 6th November 2008 with Mrs. Hanrahan’s agreement.
17. Regardless of the aforementioned dispute between Mr. Hanrahan and Ms Harte, in circumstances where Mr. Hanrahan does not contest the facility afforded to him on the 10th November 2010 and its expiry on the 31st January 2011 and the bank only proceeded to seek judgment against him, the bank’s dealings with his wife in respect of this facility are simply irrelevant and cannot afford him any arguable defence to the bank’s claim.
18. Mr. Hanrahan also seeks to rely, by way of proposed defence, upon the circumstances surrounding the judgment which he obtained against the Minister for Agriculture and Food on the 21st December 2010 and in particular the order of McMahon J. that, as a term and condition of the stay granted, the Minister immediately pay him a sum of €180,000. In this regard Mr. Hanrahan seeks to rely upon the affidavit of his solicitor, Mr. David McAvin, sworn in those proceedings on the 23rd May 2011. Whilst it was not particularly clear from Mr. Hanrahan’s oral submission to this court precisely why he believes the content of this affidavit might assist him on his present application, it would appear that he seeks to contend that his position vis-a-vis the bank was adversely affected by the matters therein deposed to. That being so it is necessary to briefly consider the content of Mr. McAvin’s affidavit.
19. Concerning the order of McMahon J. requiring the payment of €180,000 to Mr. Hanrahan, Mr. McAvin advises that he furnished the details of his firm’s bank account to an official in the Department of Agriculture and Food on the 23rd December 2010 and to the Chief State Solicitor the following day. He states that he was aware that in the aftermath of the judgment of the 21st December 2010 a successful application for garnishee in the sum of €90,000 had been made by another creditor of Mr. Hanrahan and that this would impact on the order made by McMahon. J. Nonetheless, having regard to his discussions with the Chief State Solicitor’s office he understood that the balance of the €180,000 would be transferred to his account shortly after the 7th January 2011 and this did not happen. Rather, the Chief State Solicitor’s office transferred the balance of €90,000 directly to Mr. Hanrahan’s bank account, a transfer which he considered to be irregular having regard to the exchanges which had taken place between the parties. Mr. McAvin’s complaint was that as a result of what he considered to be a breach by the Chief State Solicitor’s office of the universally accepted practice of ensuring that any payment to be made to a party would be made to the solicitor on record for that party that this had resulted in a breach by Mr. Hanrahan of his contractual arrangements for the payment of his professional fees.
20. As is readily apparent the matters deposed to in Mr. McAvin’s affidavit could never provide any basis upon which Mr. Hanrahan might defend the within proceedings against the bank. First, the complaint of wrongdoing advanced by Mr. McAvin was as against the Chief State Solicitor’s office, rather than the bank. Second, the payment of the €90,000 to the bank rather than to Mr. McAvin had the result that Mr. Hanrahan’s liability to the bank was reduced from that which would have been the case had the €90,000 been paid to Mr. McAvin who, as Mr Hanrahan’s solicitor, would have been entitled to deduct his legal fees prior to lodging the balance with the bank. Third, lest Mr. Hanrahan be labouring under the mistaken impression that he can rely upon Mr. McAvin’s affidavit to suggest that he might have been entitled to retain the balance of the monies allegedly wrongly paid to the bank by the Chief State Solicitor’s office, after the discharge of his legal costs, that is clearly is not the case. As we know, Mr. McAvin was bound to pay the net proceeds of any monies received by him on foot of Mr. Hanrahan’s proceedings against the Minister for Agriculture and Food to the bank on foot of the undertaking which was provided as security for the facility. Finally, it is clear that Mr. McAvin accepted that the sum of €180,000 which McMahon J. directed to be paid to Mr. Hanrahan had to be reduced to reflect the garnishee obtained by a creditor subsequent to that order.
21. Given that Mr. Hanrahan in the High Court, in his replying affidavit of the 19th February 2014, stated that he wished to rely upon complaints which he had made to Mr. David Guinane by letter dated the 10th June 2011 by way of defence to the proceedings. It is necessary to refer briefly to the main points he made in that letter.
22. The first complaint made by Mr. Hanrahan was the fact that Ms. Harte had allegedly deducted a sum of in excess of €9,000 from a creamery cheque of approximately €12,300 at a time when the creamery cheque was, accordingly to Mr. Hanrahan, at its lowest and which he claimed had had a catastrophic effect on the business. However, as is apparent from the copy of the bank statement exhibited to Ms Harte’s affidavit, the creamery cheque to which Mr Hanrahan refers was lodged on the 18th January 2011. The sum of €9,090.62 was not deducted from that cheque. Rather that sum was debited to the account on the 20th January 2011 in respect of the previous quarterly interest payment and that deduction, as counsel for the bank made clear by reference to the full statement of account, was fully in accordance with the prior conduct of the bank and the overdraft facility. It is also to be noted that Mr. Hanrahan does not maintain that Ms. Harte’s actions were contrary to the terms of the overdraft facility agreed between the parties and no detail whatsoever is furnished as to the catastrophic effect this deduction is alleged to have had on his business.
23. Perhaps the overriding sense of grievance expressed by Mr. Hanrahan in his letter to Mr. Guinane concerned the bank’s decision to send him a solicitor’s letter demanding repayment of the facility without the good grace of a prior telephone call particularly in circumstances where he considered the bank was fully secured by reason of his solicitor’s undertaking.
24. In relation to this complaint the first relevant factor is that Mr. Hanrahan does not dispute the bank’s claim to the effect that the facility which it afforded him on the 10th November 2010 expired on the 31st January 2011 without the requirement of any prior notice. Further, as a matter of law, the bank cannot be faulted for writing the letter which it did seeking repayment of the monies on foot of the overdraft facility. That is the standard approach of most creditors who feel they may need to resort to litigation to recover monies due to them. There was no obligation on the part of the bank to telephone Mr. Hanrahan, even if it be the case that he expected the courtesy of such a call. The absence of such a telephone call is immaterial from a legal perspective and affords him no potential ground of defence.
25. Another matter upon which Mr. Hanrahan sought rely in his letter to Mr. Guinane was his assertion that the bank’s conduct was reprehensible given that it was fully secured by virtue of his solicitor’s letter of undertaking concerning the net proceeds of any award of damages he might recover in his proceedings against the Minister for Agriculture and Food. In my opinion, it matters not whether Mr. Hanrahan was correct in this assertion as the fact that the bank was secured could never as a matter of law provide him with a defence to the bank’s claim for summary judgement. That fact notwithstanding, I have to say I find it difficult to understand how Mr. Hanrahan could contend that the bank was fully secured. Whilst he obtained an award of damages against the Minister for €304,320 that judgment was appealed by the Minister. Further the result of the Minister’s application for a stay on that judgment and the consequences of the order of garnishee obtained by Kelly’s Farm Machinery in December 2010 was that the only sum that the bank was bound to recover on foot of its security was the €90,000 which was credited to his account on the 2nd February 2011 by electronic transfer from the office of the Chief State Solicitor. Further, the sum claimed by the bank in its application for summary judgment was one which gave credit to Mr. Hanrahan for that €90,000. Accordingly, it is difficult to see how Mr. Hanrahan could maintain to Mr. Guinane that the bank was, at the time of his letter, fully secured in respect of the overdraft facility.
Conclusion
26. To conclude, while Mr. Hanrahan contends that he has a bona fide ground of appeal against the decision of Noonan J. and considers that he has put evidence before this court sufficient to establish a credible defence to the banks claim, for the reasons earlier stated I cannot accept that this is so. The terms of the overdraft facility, insofar as it relates to Mr Hanrahan, are not disputed. The facility has expired and the sums claimed as due and owing to the bank by Mr. Hanrahan have not been contested. Any error or controversy concerning the transfer of the account the subject matter of the facility into the joint names of himself and his wife do not avail him by way of potential defence given that the bank has not pursued Mrs. Hanrahan for the sums outstanding.
27. For the reasons already stated I am also satisfied that Mr. Hanrahan has not demonstrated the existence of any bona fide credible defence based on the payment into his account of the sum of €90,000 on the 2nd February 2010 by the Chief State Solicitor or the charge to his account of the sum of €9,090.62 in respect of quarterly interest on the 20th January 2011.
28. Whilst it is true to say that in the course of his submissions Mr. Hanrahan has asserted that he has suffered catastrophic loss and damage by reason of some wrongdoing on the part of the bank, that is nothing more than a bald assertion which is unsupported by any credible evidence. He has not explained the nature of any such breach and how it has caused him the loss and damage to which he has referred. Neither has he demonstrated how such conduct could afford him a defence to the bank’s claim for summary judgment or support a counterclaim of the type that would warrant granting the extension of time sought.
29. For the aforementioned reasons I would refuse the extension of time sought.
Edel Grace and Peter Sweetman v An Bórd Pleanála
02/2016
Supreme Court
24 February 2017
unreported
[2017] IESC 10
Mr. Justice Clarke and Ms. Justice O’Malley
February 24, 2017
In the Matter of Section 50 of the Planning and Development Act, 2000 as amended
JUDGMENT
1. Introduction
1.1 Not for the first time this Court is confronted with issues of environmental law in respect of which there is potentially a significant European law dimension. In these proceedings generally a challenge is brought to a permission granted by the respondent (“the Board”) to permit the development of a wind farm on lands owned by the second named notice party (“Coillte”). The wind farm is intended to be developed and operated by the first named notice party (“ESB Wind”).
1.2 As required by s.50 of the Planning and Development Act, 2000, as amended, (“the 2000 Act”), the proceedings were commenced by judicial review and were heard in the High Court. For the reasons set out in a judgment delivered on 1st October, 2015, that Court (Fullam J.) dismissed the claim (Grace & anor v. An Bórd Pleanála [2015] IEHC 593). As further required by s.50A(7) of the 2000 Act, no ordinary appeal could be pursued from that decision except with a certificate of the High Court to the effect that a point of law of exceptional public importance arose and that it was desirable in the public interest that an appeal be pursued. An application for such a certificate was made and, on the 4th December, 2015, was refused (see judgment of the High Court (Grace & anor v. An Bórd Pleanála [2015] IEHC 870)).
1.3 Of course when the 2000 Act first came into force the appeal which might have been pursued, should such a certificate have been granted, would have been an appeal to this Court. However, on foot of the 33rd Amendment to the Constitution and the Court of Appeal Act, 2014 enacted to give practical effect to that Amendment, the normal role of this Court in such matters was transferred to the Court of Appeal. On that basis, and in the light of the existing jurisprudence (to which it will be necessary briefly to refer in due course), the refusal of a certificate by Fullam J. prevented any appeal from being pursued to the Court of Appeal for that jurisprudence made clear that a refusal to certify could not itself be the subject of an appeal.
1.4 However, in the light of the new constitutional architecture which has come into place as a result of the 33rd Amendment, that was not the end of the road. An application was brought seeking leave to appeal to this Court directly from the High Court utilising the provisions of Art. 34.5.4 of the Constitution as introduced by the 33rd Amendment. Such direct appeals have come to be known as leapfrog appeals. For the reasons set out in a determination of this Court (Grace & anor v. An Bórd Pleanála [2016] IESCDET 29), the Court granted leave to bring a leapfrog appeal from the decision of Fullam J. directly to this Court and specified three issues or grounds which met the constitutional threshold. As this Court has pointed out in McEnery v. Commissioner of An Garda Síochána [2016] IESC 26, subject to certain issues which may legitimately be raised by a respondent, the only questions which are properly addressed by this Court on appeal are the issues which can fairly be said to come within the ambit of the grounds on which leave to appeal is given. It is, therefore, necessary to turn briefly to those grounds.
2. The Grounds on which leave was given
2.1 The Court specified those grounds in its determination in the following terms:-
“(a) Whether the jurisprudence of this Court on the question of standing in environmental matters requires to be revised in the light of recent judgments of the Court of Justice and, if so, the application of any such revised jurisprudence to the facts of this case;
(b) Whether the jurisprudence of this Court concerning the absence of an entitlement to appeal against a refusal of leave to appeal by the High Court in environmental matters requires to be revised in the light of the new constitutional architecture consequent on the adoption of the 33rd Amendment and the jurisprudence of the ECJ and, if so, the application of such revised jurisprudence to the facts of this case; and
(c) Should it prove both appropriate and necessary in the light of the finding of the Court on issues (a) and (b) whether a substantive appeal against the decision of the High Court should be allowed by this Court on either or both of the grounds in respect of which the applicants sought leave to appeal before the High Court.”
2.2 For ease of reference we will refer to those issues as, respectively, the “standing issue”, the “appeal issue” and the “substantive issue”. For reasons which we hope will become apparent we propose addressing the appeal issue first for there was little between the parties on that question at least by the time the oral hearing had concluded. We then propose to deal with the standing issue before finally turning to the substantive issue.
2.3 However, it is also relevant to note the position of the Minister who is, in substance, the second named notice party. The Minister did not participate in the High Court. However, during the case management process in this Court, the Minister applied to be allowed participate in the appeal with particular reference to making submissions on the standing issue. The Court gave the Minister leave to participate on the basis that the standing issue gave rise to issues of significant general importance. Indeed, leave to appeal had been granted on the basis that the issue was one of general public importance. It should also be noted that the Minister indicated that he did not seek to participate on the substantive issue.
2.4 It would be fair to say that the position adopted by the Minister was broadly supportive of the case made by Ms. Grace and Mr. Sweetman on standing. The Minister, along with those parties, suggested that the view of the trial judge on the question of standing appeared to have been over-influenced by some of the earlier case law to which reference will be made in the course of this judgment. That being said we now propose to turn to the appeal issue.
3. The Appeal Issue
3.1 This issue stems from the rather complex situation which now prevails, subsequent to the coming into force of the 33rd Amendment, in those cases where legislation, which predated that Amendment, precluded an appeal to this Court in the absence of a certificate of the High Court. Such provisions are found in s.50 of the 2000 Act and similar provisions can be found in other areas such as the immigration field. It had been determined that legislation of that type validly precluded an appeal to this Court and ought to be interpreted as precluding an appeal by the back door in the shape of an appeal against the refusal of a certificate (see for example Irish Asphalt Ltd v. An Bórd Pleanála [1996] 2 I.R. 179 and Irish Hardware Association v. South Dublin County Council [2001] IESC 5).
3.2 Thus, on the coming into force of the 33rd Amendment, the Court of Appeal Act, 2014 transferred the ordinary jurisdiction of this Court to the Court of Appeal and provided that references to this Court in most legislation existing at that time were to be construed as references to the Court of Appeal (see section 74(1)). Thus the ordinary right of appeal from the High Court under the new constitutional regime became a right to appeal to the Court of Appeal but any measures governing appeals to this Court under the previous regime were carried forward and apply in the same way to appeals to the Court of Appeal under the new constitutional architecture.
3.3 It is also important to note that, as this Court has pointed out in a number of recent determinations (including the determination granting leave in this case and also that in Kelly v. University College Dublin & anor [2016] IESCDET 30), the wording of Art. 34.5.3 of the Constitution (which governs appeals from the High Court to the Court of Appeal) refers to the possibility that such an appeal can be either “excluded” or “regulated” by appropriate legislation. In that regard the wording is the same as the previous provisions of the Constitution which governed an appeal from the High Court to this Court. Thus, prima facie, the restrictions which were imposed on an appeal to this Court under the previous regime, by the requirement for certification, apply equally to an appeal to the Court of Appeal under the new regime.
3.4 However, the wording of Art. 34.5.4 of the Constitution (which provides for a leapfrog appeal to this Court) makes clear that relevant legislation can only “regulate” but importantly cannot “exclude” an appeal to this Court. That provision must be seen in the light of the fact that, in order to obtain leave to appeal to this Court under the new regime, it is necessary that this Court be satisfied that a general issue of public importance arises or that the interests of justice require an appeal to this Court. The deliberate omission, in the constitutional amendment passed by the people, of an entitlement on the part of the Oireachtas to exclude an appeal to this Court under the new regime has to be seen in that context. Would it have been appropriate to allow the Oireachtas to prevent an appeal coming to this Court even though this Court was satisfied that the case raised an issue of general public importance or that the interests of justice required an appeal? But it seems to us to follow that any measure which prevents (rather than regulates) the exercise by this Court of its entitlement, under the 33rd Amendment, to consider whether a case meets that constitutional threshold must be considered to be an impermissible exclusion of the right of appeal to this Court. No express relevant measure has been introduced since the 33rd Amendment. Precisely what form of measure might be considered an exclusion rather than a regulation does not, therefore, fall for consideration in this case.
3.5 It follows that in this case Ms. Grace and Mr. Sweetman had an entitlement to invite this Court to consider whether the constitutional threshold is met and, having persuaded this Court that it was met, to pursue an appeal to this Court. Therefore, there now is, at least potentially, an appeal to this Court even in so-called certificate cases (i.e. cases where, as here, a certificate of the High Court would ordinarily be required) provided that the constitutional threshold is met.
3.6 In passing it is worth at least noting that the wording of the form of certificate which the High Court was required to consider giving in this case seems to place the bar somewhat higher than that which applies under the Constitution itself. In the case of a certificate under the 2000 Act, the High Court judge is required to be satisfied that a point of law of exceptional public importance arises and that it is desirable in the public interest that an appeal be pursued. In order that the constitutional threshold be met it is necessary that an issue of general public importance arise or that it is in the interest of justice that an appeal be pursued to this Court. It is possible, therefore, to envisage that there might be a case where the High Court quite correctly refused a certificate but this Court, without in any way disagreeing with the High Court, found that the constitutional threshold had been met. The thresholds are not the same and the certificate threshold is undoubtedly somewhat higher.
3.7 That being said it remains the case that the new constitutional architecture suggests that the normal and ordinary appellate process following on from a decision of the High Court should be an appeal to the Court of Appeal. However, that route remains subject to a valid restriction imposed by the certification process.
3.8 In that regard we would consider that it would be appropriate for any party who wishes to apply to this Court for leave to bring a leapfrog appeal in a case such as this to first seek a certificate of the High Court so as to enable an appeal to be brought to the Court of Appeal. This should be done in all cases unless there truly are grounds for suggesting that there should be a direct appeal to this Court in any event. Unless it is a case which would meet the criteria for leapfrog leave, even if an appeal to the Court of Appeal were available, then the possibility of an appeal to the Court of Appeal should first be explored. Furthermore, it seems to us that this Court would benefit, in considering whether to grant leapfrog leave, from the views of the High Court judge who heard the case as to whether important issues are raised. While it will always remain the situation that this Court must reach its own independent view on whether the constitutional threshold is met, nonetheless the analysis of a trial judge on the importance of the issues which were raised in the proceedings would be of assistance.
3.9 In any event the restriction on appeals without a certificate does not prevent a party, who can persuade this Court that the constitutional threshold is met, from pursuing an appeal. Against that background we do not see any need to revisit the appellate jurisprudence applying in certificate cases. If a party contends that they did meet the certificate threshold and that the High Court has incorrectly declined a certificate then such a party can attempt to persuade this Court that the constitutional threshold has been met. Given that the constitutional threshold is somewhat lower, such a party is no way prejudiced by being required to go down that route. We would merely add that we consider that it would be appropriate for High Court judges, in considering whether to grant a certificate, to at least have regard to the new constitutional architecture, to the fact that an appeal to this Court under the leapfrog provisions of Art. 34.5.4. is open but also to the fact that an appeal to the Court of Appeal should remain the more normal route for appeals from the High Court.
4. Standing
4.1 For reasons which we hope to address shortly it is clear that the question of standing to bring challenges to environmental decisions which are subject to European law is itself a question which raises issues both of national law on standing and European law. The reason for this stems from the provisions of Article 11 of the Codified Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment with EEA relevance (“Article 11”). It is, of course, that Article which confers, as a matter of European law, and in conformity with the provisions of the Aarhus Convention (The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), an entitlement on persons to question the procedural or substantive validity of certain decisions made in the environmental field. There is no dispute but that the decision to grant permission in respect of the wind farm which is subject to challenge in these proceedings comes within the ambit of the type of decision which is subject to the provisions of Article 11.
4.2 So far as standing is concerned what Article 11.1 itself provides is the following:-
“1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:-
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation of this Directive.”
4.3 As will shortly be analysed there has never been a requirement in Irish judicial review law on standing that there be an “impairment of right” as such in order that a person might be entitled to challenge a relevant measure. It is the case that such a requirement applies in the administrative law of some other member states of the European Union such as Germany. However, so far as Ireland is concerned, Article 11 therefore requires that a person, in order to have the right to bring a challenge conferred by that Article, have a “sufficient interest” in the matter “in accordance with the law of the member state concerned” but also that the relevant standing requirement needs to be interpreted and applied on the basis of a “wide access to justice”.
4.4 It is clear, therefore, that standing, for the purposes of Article 11, does not involve an autonomous European law concept as such but rather involves the application of national standing rules subject to the important caveat that those rules must be consistent with the “wide access to justice” requirement found in the text of the Article itself. It follows that each member state has a material margin of appreciation in determining the precise standing rules which are to apply in respect of challenges covered by Article 11 but that that margin of appreciation is circumscribed by the overriding obligation, to be found in the Article, that standing rules must nonetheless confer wide access to justice.
4.5 In that context the CJEU pointed out in Case-570/13 Gruber that:-
“… Member States have a significant discretion to determine what constitutes ‘sufficient interest’ or ‘impairment of a right’…
However, it is apparent from the wording of Article 11(3) of Directive 2011/92 and the second paragraph of Article 9(2) of the Aarhus Convention, that that discretion is limited by the need to respect the objective of ensuring wide access to justice for the public concerned”.
4.6 The starting point has, therefore, to be a consideration of Irish standing rules although it may ultimately be necessary to consider whether those rules are consistent with the “wide access to justice” requirement imposed by European law.
4.7 However, it may well be appropriate to consider Irish judicial review standing rules in environmental cases on a two-step basis. The reason for a second step is that the general principles behind the standing rules which are applied in relation to judicial review challenges in Ireland may, at least on one view, have a particular application in the context of environmental challenges. That is not to say that the overall rules do not apply across the board. Rather it is to say that, as can often be the case, the application of general rules may differ in particular circumstances. Environmental law is a case in point. From a very early stage (and indeed predating Ireland’s membership of the then European Economic Community) members of the public generally enjoyed a broad entitlement to participate in environmental decision-making. For example, since the requirement for planning permission was first introduced in Ireland under the Local Government (Planning and Development) Act, 1963, it has always been the case that persons could object to a planning permission. To facilitate public participation a person seeking such a permission was required to publish a public notice of their intention both in the print media and by affixing a notice to the location in respect of which the permission was sought. Furthermore, when the Board was established by virtue of the provisions of the Local Government (Planning and Development) Act, 1976, it was given the role of considering appeals from planning decisions made by local authorities in their capacity as planning authorities. The Board also entertained observations from the public generally and the practice was to conduct oral hearings in respect of the more important appeals in which hearings members of the public were entitled to participate. In addition, it is obvious that, depending on the location, scale and potential consequences of any development project, a greater or lesser number of persons may have legitimate concerns about its impact.
4.8 Many of the administrative decisions which are the subject of judicial review involve only the decision-maker and one or a very small number of persons directly affected by the decision in question. A challenge to a decision by, for example, a social welfare tribunal or appeals body to refuse a benefit to an individual will rarely directly involve anyone other than that individual and the decision-making body. Similar considerations are likely to apply in the case of many regulatory bodies. Furthermore, adjudicatory bodies outside of the court system, such as those charged with making decisions in fields such as employment, make many decisions which have no direct effect except on the parties to the adjudicative process giving rise to the decision sought to be challenged. For those reasons it follows that, in very many cases, the position on standing will be clear. The only persons with any real or “sufficient” interest in the matter sought to be challenged will be clearly defined and significantly confined in number. However, it is at least arguable that the application of general principles to the question of standing in the environmental field may give rise to a situation where a significantly wider number of persons have standing but may also give rise to questions of greater difficulty in relation to defining the boundary between those who have standing and those who do not. This is not because there are different rules on standing to be applied in environmental cases but rather that the definition of those who may have a sufficient interest, in accordance with Irish law, in an environmental challenge may, because of the very nature of the environmental challenge itself, encompass a wider (and potentially significantly wider) group of persons or bodies and may give rise to greater questions of difficulty in determining where the limits of standing may lie.
4.9 Against that background it seems to us that the question of standing in this case logically involves considering, in sequence, potentially three separate questions. These are:-
(a) The issue of the limits of standing in judicial review challenges generally;
(b) The application of the general principles identified in (a) in the case of environmental challenges; and
(c) Whether the position in national law identified as a result of (a) and (b) requires to be modified in the light of the “wide access to justice” requirement specified in Article 11.
It is proposed to deal with each of those issues in turn.
5. Standing in Irish Judicial Review
5.1 As the authors of Hogan and Morgan – Administrative Law in Ireland (4th Ed) point out (see paras. 16-195 et seq), the law on standing in judicial review proceedings has undergone, and may still be undergoing, what might at a minimum be described as an evolution in recent years. The starting point for present purposes has to be the introduction, in 1986, of new rules of court concerning judicial review which provide, in O.84, r.20(4), that leave to seek judicial review should not be granted unless the applicant “has a sufficient interest in the matter to which the application relates”. It follows, therefore, that the rather generalised term “sufficient interest” now defines the limits of standing to bring a judicial review challenge irrespective of the form of order sought. It should also be noted, as the authors of Hogan and Morgan also point out, that the courts in this jurisdiction have traditionally applied the same approach to standing, which was identified in respect of constitutional cases in Cahill v. Sutton [1980] I.R. 269, in relation to judicial review proceedings which do not involve a constitutional element.
5.2 That overall approach is fairly described as being reasonably flexible as was pointed out by Henchy J. in Cahill when he stated:-
“(The relevant person) must show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.
This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires. Since the paramount consideration in the exercise of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional provision that has been invoked. For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights.”
5.3 While the language used by Henchy J. was specific to the challenge to a statute which was under consideration in that case, the general principle seems to be applicable, and to have been regularly applied, across the board in judicial review cases.
5.4 Therefore, the starting point is that the decision or measure under challenge must be said to give rise to an actual or imminent “injury or prejudice” to the challenger or that the challenger has been or is in danger of being “adversely affected”. That can be described as the broad general principle. In order for a person to have standing to bring a judicial review challenge, ordinarily the person concerned will need to be in a position to demonstrate that the decision or measure which they wish to challenge either has or is imminently in danger of having adversely affecting their interests so as to cause or potentially cause injury or prejudice.
5.5 The intent behind the limitation inherent in that principle is to prevent a party from, in the words of Henchy J. in Cahill, being “allowed to conjure up, invoke and champion the putative constitutional rights of a hypothetical third party…”. There is, of course, a particular aspect of constitutional challenges which might well be said to have informed that analysis. A successful constitutional challenge, under Irish constitutional law, renders the statute in question (or an appropriate part of it) invalid. Thus the impugned statutory provision will no longer be of any effect on any persons and not just on those whose specific rights may have been impermissibly interfered with by the statute in question. Thus, pending the enactment of replacement and constitutionally conforming legislation, all persons, and not only those whose rights may have been impermissibly affected by the statute in question, will be relieved of complying with whatever regime the statute concerned put in place. That fact provides an important rationale for caution in allowing parties to, as it were, piggyback a challenge to a measure of general application on the basis of asserting a breach of rights which applies only to others.
5.6 Like considerations may apply in respect of some non-constitutional judicial review proceedings but many such cases, even where successful, do not involve interference with a decision or measure which has any implications beyond those specific to the parties.
5.7 Be that as it may, and subject to the sort of general extension of standing in particular exceptional cases identified in Cahill, where the interests of justice may require it, the broad rule requires that a challenger must establish adverse effect causing or likely to cause injury or prejudice. As noted earlier the application of that broad rule in respect of many types of challenge may not give rise to any great difficulty. The range of persons affected by a decision or measure to a sufficient extent that they can be described as having been adversely affected by injury or prejudice may be clear, obvious and limited. However, as is often the case, there may be categories of challenge where the application of that general principle may give rise to much greater difficulty. Against that background it is necessary to turn to the application of the general principle in environmental cases.
6. Application of General Principle in Environmental Cases
6.1 Before looking at the jurisprudence concerning the manner in which the general principle has been applied in environmental cases it is important to note certain statutory measures which had the effect of altering standing rules in such proceedings. Section 50(4) of the 2000 Act introduced a new test for standing of “substantial interest”. However, the Environment (Miscellaneous Provisions) Act, 2011 (s. 20) amended that provision and brought about a reversion to the traditional “sufficient interest” test. It may well have been that there was concern that the “substantial interest” test might have failed to meet the requirement of broad access to justice required by Article 11.
6.2 It should also be noted, in passing, that some confusion may have been caused by the fact that the phrase “sufficient interest” formed the traditional basis for standing in Ireland and the fact that Article 11 also uses the language of “sufficient interest”. The text of Article 11 requires that the challenger have a sufficient interest “in accordance with national law”. Thus, as already noted, the starting point of any analysis has to be to determine what national law says about standing. There is no reason in principle why the language of Irish environmental judicial review standing law has to use the term “sufficient interest” for it to be compatible with EU law. It is open to the Irish legislature to provide for any standing rules considered appropriate provided that those rules, in whatever terms they are defined, meet the “broad access to justice” requirement. There may well have been confusion which stemmed from the fact that the traditional test for standing in Ireland used the same phrase as appears in the English version of Article 11.
6.3 Be that as it may, it is important in analysing the recent case law on standing in environmental cases to pay particular regard to whether the case in question was decided at a time during which the “substantial interest” test had been imposed. On the other hand, it may well be that some assistance can still be obtained from cases determined during that period for it can hardly be doubted but that the “substantial interest” test was stricter than the “sufficient interest” requirement so that it may readily be inferred that circumstances which met the “substantial interest” test would also clearly have met a “sufficient interest” requirement had it been in place at the time in question.
6.4 The particular focus of the standing issue in this case concerns persons who did not participate in the substantive planning process before the Board. That aspect of the standing rules in environmental cases has also been the subject of specific statutory intervention initially in the form of s.50(4) of the 2000 Act which required that an applicant for judicial review must have participated before the relevant planning authority and/or the Board or could show that there were “good and sufficient reasons” for not so participating. However s.13 of the Planning and Development (Strategic Infrastructure) Act, 2006 reversed that requirement with effect from 17th October, 2006. Thus the earlier of those measures introduced, with effect from 2000, a requirement of prior participation but the latter reverted the law to the previous position that a failure to participate does not operate necessarily in all circumstances as a barrier to standing. Indeed, some of the case law which predated those legislative changes suggests that the traditional position was one where a failure to participate did not necessarily, and in all circumstances, prevent a relevant person from having standing. Chambers v. An Bórd Pleanála [1992] 1 I.R. 134 is a case in point. The challengers in that case lived near the site of a proposed pharmaceutical manufacturing facility. They were members of an environmental pressure group which opposed the granting of permission but did not, personally, put in observations or objections or actually participate at an oral hearing before the Board. While the High Court (Lavan J.) held the persons concerned to lack standing this Court took a different view.
6.5 It seems to follow, therefore, that, in the absence of a specific statutory measure introduced in respect of environmental cases, the general principle permitted, at least in some circumstances, persons to be held to have standing even though they did not participate in the process. However, it must be said that the challengers in Chambers would clearly have met the general test identified in Cahill for their interests, as persons living in the immediate vicinity of the proposed development, were clearly subject to being potentially adversely affected or prejudiced by the development in question. In other words unless the failure to participate in the planning process was to be regarded as a disqualifying matter so far as standing was concerned then the persons in question would undoubtedly have met the Cahill standard.
6.6 It is also of some relevance to note Mulcreevy v. Min. for the Environment [2004] 1 I.R. 72, where the applicant in question was found to have standing to challenge the validity of a statutory instrument permitting works to be carried out on a national monument even though the monument concerned was located in Dublin but the applicant lived in Kerry.
6.7 While it has been noted from time to time that a mere interest in ensuring that the law is upheld is not, in itself, sufficient to confer standing (for if it were then there would, in all cases, be the potential for a so-called actio popularis and standing rules might be of very little relevance save for excluding abuse of process and the like), nonetheless Mulcreevy seems to suggest that the nature of the measure under challenge may be such as to confer a right to challenge on a very wide range of persons (and possibly, in some cases, on all persons not motivated by bad faith or the like).
6.8 On the other hand some interpretations placed on Lancefort Ltd v. An Bórd Pleanála (No. 2) [1999] 2 I.R. 270, might suggest a different view which would have supported the proposition that prior participation (or an appropriate explanation for non-participation) was a prerequisite for standing. Certainly the trial judge in this case placed considerable reliance on that judgment. However, it is arguable that Lancefort does not stand as authority for a general principle that prior participation is in all cases a prerequisite to standing. Lancefort certainly does suggest that it may, however, be a factor. But even if Lancefort might have been regarded as authority for the wider proposition it must, of course, now be read in the light of the introduction, in 2000, of an express statutory requirement for prior participation followed by the express repeal of that provision in 2006. On that basis it can no longer be held that Lancefort provides authority for any general preclusion of standing in the absence of prior participation or an appropriate explanation for the lack of it.
6.9 The case law to date would seem to suggest, therefore, that a reasonably liberal approach is taken to the sort of interest which must be potentially affected in order to confer standing in environmental cases. Persons clearly can have an interest by virtue of proximity to the proposed development. The degree of proximity required may well depend on the scale and nature of the development in question. For example, a large scale development having the potential to impact on the amenity of persons within a wide catchment area might well be said to have the potential to have an adverse impact on the legitimate interests of persons living, or perhaps working or otherwise having regular contact with, a significant geographical area. A minor domestic development might well only have an impact on a much more restricted area.
6.10 In addition, regard can be had to the nature and general importance of the site or amenities sought to be protected. Developments which have the potential to have a material and significant effect on the environment generally or raise questions of particular national or international importance (such as the national monument involved in Mulcreevy) may confer standing on a much wider range of persons.
6.11 On the current state of the jurisprudence in Ireland, and without, for the moment, having regard to the requirements of European law, it seems that standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question. Furthermore, that broad assessment should have regard, in an appropriate case, to the legitimate interest of persons in seeking to ensure appropriate protection of important aspects of the environment or amenity generally. The next question concerns the European dimension.
7. The European Dimension
7.1 Two specific aspects of European law are potentially relevant to the standing issue which arises in this case. The first, as already noted, is the requirement that national standing rules must be consistent with broad access to justice. It follows that, in interpreting national standing rules, the courts of a member state are required to ensure that those rules meet the “wide access to justice” standard. To the extent that national rules might breach that imperative a national court will be required, either by disapplication or appropriate interpretation, to ensure that the standing rules actually applied in those cases to which Article 11 applies, meet the standard required. As Irish standing rules are, for the reasons already analysed, expressed in broad terms capable of appropriate interpretation it does not seem that any question of disapplication truly arises. However, it remains necessary for this Court, in interpreting the “sufficient interest” requirement for standing contained in national law, to ensure that the interpretation conforms with the requirements of Article 11.
7.2 Second, it is potentially of some relevance to note the provisions of European law concerning the standing of environmental non governmental organisations (“NGOs”) and the measures adopted in Ireland to ensure compliance with those provisions. Both sides of the argument in this case seek to place some reliance on the broad standing now given to environmental NGOs in Irish law. On the one side it is argued that the very fact that environment NGOs have such a broad standing, and thus can maintain judicial review proceedings in respect of developments where few persons might be said to have a direct individual interest in the development concerned, removes the need for a broad interpretation of what might be called the Cahill exception. As already noted it was made clear in Cahill that there may be exceptional cases which require a widening of what might otherwise be the appropriate approach to standing. A particular example is to be found in cases where there might a significant breach of legal or constitutional obligations but where there would be few, if any, persons in a practical position to maintain appropriate proceedings. On that basis it might be said that there could well be categories of environmental cases which would require allowing a wide range of persons standing because any narrower view on the standing question might make it unlikely that an effective challenge could be brought even though there was a breach of legal or constitutional requirements. Against that it is suggested that the very fact that environmental NGOs have an almost unlimited access to environmental litigation removes the necessity for invoking a Cahill type exception in environmental cases.
7.3 On the other side it is suggested that that it would be a strange result if the proper interpretation of standing rules led to the conclusion that a small group of persons, by forming themselves into an organisation, could bring a challenge which those same persons, acting individually, could not bring. The fact that Ireland has not imposed any significant conditions which would restrict the type of NGO which might have standing is said to create a situation where there would be an anomalous result occasioned by excluding standing to individuals but conferring standing on those same individuals should they form a very small organisation.
7.4 However, before considering the impact of Union law, it would appear to be appropriate to consider whether, applying the traditional Irish approach to standing, either Ms. Grace and Mr. Sweetman would have standing in this case. It is only if, on the proper application of domestic standing rules, these proceedings would fail for lack of standing that the question of whether that traditional approach to standing needs to be modified in the light of EU law would arise. Also, in such circumstances, it would be necessary to consider whether the impact of European Union law on the standing issues which are necessary to determine standing in this case are clear so as to determine whether a reference to the Court of Justice of the European Union might be mandated. It is, therefore, necessary to consider first whether there is standing under the traditional principles of Irish standing law noted earlier.
8. Application of Traditional Irish Standing Rules
8.1 We propose to consider the position of Ms. Grace first for, if it is clear that she has standing, then the proceedings can progress to a consideration of the substantive issue in any event.
8.2 It must first be recalled that the proposed development is intended to take place on a site which is protected as a matter of European law. That fact in itself must carry significant weight in the assessment of standing. The protection of such sites involves the legitimate interests of, arguably, every citizen. It is likely that many such sites will be located in areas where the population may be less dense than in more developed locations. The very purpose of the designation of the site, which in this case is to provide for habitat for the hen harrier which is, as will become clear when considering the substantive issue, a species which is expressly protected by the relevant European measures, involves the type of amenity value which is not necessarily confined only to those who reside in its immediate proximity. In fact, the hen harrier does not frequent areas of built-up human habitation or intensive farming. Developments that have an adverse effect on its habitat are therefore unlikely, in the normal course of events, to cause any personal prejudice or injury to the interests of individual objectors.
8.3 It seems to us that the nature of a protected site is relevant to the question of standing. Where that site – in this case a habitat of a relatively rare bird that avoids areas of human activity – is such that it is unlikely that any person can demonstrate that the proposed development will have any direct effect on their own affairs including their enjoyment of an amenity, the interpretation of the requirement of “sufficient interest” should be interpreted with a view to the necessity to protect the site against adverse effects. The legal protection of such sites could otherwise be gravely weakened.
8.4 On the other hand it is clear, as counsel for the Board argued, that the fact that both the Aarhus Convention and the Public Participation Directive gives status to national standing rules necessarily implies that it is open to subscribing or member states to impose some limitations on those who may have standing.
8.5 For the reasons already addressed it is clear that, as a matter of national law, a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. That may be especially so where the person concerned does not have a reasonably close physical proximity to the development in question or an established connection with a particular amenity value which might arguably be impaired by the proposed development. In that context it is important to emphasise that participation in the process will undoubtedly confer standing. A failure to participate may, (or may be likely to) leave the question of standing open to doubt particularly in the case of persons who cannot show either a physical proximity or a more general established interest in an amenity value of the site of the proposed development which may potentially be impaired.
8.6 There is an added factor in this case in that neither Ms. Grace nor Mr. Sweetman put forward any significant explanation as to why they did not participate. According to their counsel they were simply unaware of the proposed development until after permission had been granted.
8.7 It is, however, clear that a person who has a sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation. Those who do not have such proximity may reasonably be required to show that they have some interest which is potentially affected and one very clear way of doing that is by demonstrating that interest by participation in the permission process. That is not, however, the only way in which such an interest can be demonstrated.
8.8 The more general and more important the amenity which may be at stake then the wider range of persons who may well be able to show that they have an interest in the amenity of the area which is the subject of the proposed development. The nature of the legal challenge intended to be mounted will be relevant also. For example, a person who cannot show proximity to a proposed wind farm and did not participate in the process is unlikely to have standing to make an argument more properly raised by a person more directly affected. In our view a challenger who has not previously participated and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directed solely to the purpose of the special protection of the site.
8.9 Applying those criteria we are satisfied that Ms. Grace does have standing. She lives less than one kilometre from the SPA and relatively close to the site of the proposed development. According to her affidavit, she chose to purchase a house in the area because of its unspoilt nature, rich biodiversity, wildlife and history. She is involved in a number of local voluntary groups. Two appear to be concerned with sustainable energy. Another group aims to establish a craft trail in part of the SPA. She is currently the Chair of a community project promoting tourism in the area. She expresses a belief that the proposed development will jeopardise the work of these groups. In the context of a protected site and the nature of the development concerned together with its potential effect on the site we are satisfied that Ms. Grace, notwithstanding the absence of participation in the permission process, nonetheless has, in all the circumstances of this case, standing.
8.10 The position in respect of Mr. Sweetman is less clear. He does not have any physical proximity to the site. While he undoubtedly has an interest in environmental matters generally, he has placed no evidence before the Court to show that he has any particular interest in the specific amenity value which is potentially impaired by this development. Nor has he given any real explanation as to why he did not participate. If someone had a broad interest in a particular amenity value which they asserted was sufficient to give them standing it might be expected that their general interest in the issue would have led them to participate or, at a minimum, that there would be some reasonable explanation for non-participation. None of those factors are present in Mr. Sweetman’s case.
8.11 However, given that we are satisfied that Ms. Grace has standing and given that it is appropriate, in those circumstances, to go on to consider the merits of the substantive issue, we do not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing in this case. We would simply reiterate that had he participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour.
8.12 In any event it is, therefore, necessary to turn to the substantive issue.
9. The Substantive Issue
9.1 We have reached the view that the proper resolution of the substantive issue requires the resolution of an issue of EU law which is not an acte clair in the sense in which that term is used in the jurisprudence of the CJEU. For those reasons we propose that the Court should refer certain questions of European law to the CJEU for its opinion.
9.2 There is set out in a draft reference an analysis of the legal issues which arise in relation to the substantive issue and the reasons why we have come to the conclusion that it is necessary to refer certain questions concerning the proper interpretation of Articles 6(3) and 6(4) of Directive 92/43/EEC to the Court of Justice of the European Union.
9.3 There is also set out in a schedule to the draft reference the facts which we consider have been established on the evidence and on the materials which were before the Board. We do not, therefore, find it necessary to set out the facts again here or to elaborate on the legal issues which arise.
10. Conclusions
10.1 For the reasons set out in this judgment we have concluded that at least Ms. Grace has standing to pursue these proceedings and this appeal. In those circumstances we do not consider it necessary, for the proper resolution of this appeal, to reach a final determination on whether Mr. Sweetman also has standing.
10.2 We have concluded that it is not necessary to revisit the existing jurisprudence in respect of the absence of an entitlement to appeal from the refusal of a certificate of leave to appeal by the High Court in a case such as this. An appellant has an independent possibility of appealing directly to this Court under Article 34.5.4. While an appeal to the Court of Appeal must always remain the most normal route for any appeal to follow, nonetheless a party who is refused a certificate which has the effect of preventing them from invoking the jurisdiction of the Court of Appeal, has a constitutional route open to them.
10.3 In the light of our findings on those two issues we are satisfied that it is necessary, for the proper resolution of this appeal, to consider the merits of the substantive issue. For reasons which are apparent from a draft order of reference circulated in conjunction with this judgment, we are of the view that not all of the issues of European law which are necessary to determine this appeal are clear and we, therefore, propose to refer certain issues of European law to the Court of Justice of the European Union. While it is well established that it is for the referring court to decide on the form and content of the reference document, we propose that the parties should be given 14 days to make observations on the form of that reference. The final decision on form will, however, remain a matter entirely for the Court.
10.4 In addition, it must be clear that, in our view, a reference is required and the observations should be directed simply to the text of the proposed document. As noted in the proposed reference document it is intended to invite the Court of Justice to adopt such procedures as it may consider appropriate to ensure that the answer to the question is given in the minimum time possible. In that regard we have considered the potential effect of any undue delay on the viability of the project.