New Appeal: Re s 78 of the Courts of Justice Act 1936–court’s discretion to order one losing defendant to pay the legal costs of other defendants

In this determination, White v Bar Council of Ireland, the Minister for Justice & Equality & Ors, the Supreme Court granted former High Court Judge Barry White leave to appeal against the Court of Appeal’s interpretation of s 78 of the Courts of Justice Act 1936.

 

Background

Former High Court Judge Barry White wanted to return to practice law after retiring from the bench. His difficulties were, firstly, that the Rule 5.21 of the Bar Council’s Code of Conduct prohibits members who are retired judges from returning to practice in front of courts of equal or lesser jurisdiction that the one on which they sat; and secondly, the Minister held the opinion that a barrister could not practice unless regulated by the Bar Council and refused to place White’s name on the panel of counsel eligible for payment under the Criminal Legal Aid scheme.

White issued judicial review proceedings naming both the Bar Council and the Minister as defendants. He was seeking an order of certiorari quashing the Bar Council’s decision affirming that he would be subject to Rule 5.21 and an order of certiorari quashing the Minister’s decision not to add him to the panel eligible for payment under the Criminal Legal Aid scheme.

In the High Court, Barrett J held that the Minister had acted ultra vires, arbitrarily, unreasonable and in breach of White’s constitutional right to earn a livelihood. But Barrett J refused to grant any relief against the Bar Council, holding that White could practice without being under its regulation.

White applied under s 78 of of the Courts of Justice Act 1936 for an order directing the Minister to pay the costs incurred by the Bar Council, for which White was liable. The 1936 Act states:

78.—Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff’s own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed.

The High Court granted White that costs order against the Minister. The Minister appealed that decision to the Court of Appeal.

 

Court of Appeal

Interpreting s 78, Peart J stated:

  1. In my view s. 78 exists in order to provide the court with a statutory jurisdiction to make an ‘order over’ where there are two defendants who may have a liability either jointly or severally in respect of the same wrong, and where the plaintiff is entitled on the known facts not to be certain which of those defendants may ultimately be found to be liable. It may only be at trial that a conclusion on liability as between two potential defendants can be determined. It would be a manifest injustice to a plaintiff in such circumstances to have to decide (in racing parlance) to put his money on one horse or the other. The section enables him to back both horses (to pursue the betting analogy still further) without the certainty that where liability is found only against defendant A, the plaintiff will have to pay the costs of B against whom he/she has been unsuccessful. It is nevertheless at the judge’s discretion whether or not to make the order over under s. 78 at the conclusion of the trial. But an absolute sine qua non has always been, and it makes complete sense of course, that both named defendants have a potential liability to the plaintiff in the same cause of action arising on the same facts.

Applying that interpretation to the facts of this case, the CoA allowed the Minister’s appeal, stating:

  1. … As I have said, the claim against each respondent are completely different, and where the relief sought against the Bar Council could never have been granted against the Minister, and vice versa. I consider, very respectfully, that the trial judge’s conclusion that he had jurisdiction under s. 78 to make the ‘order over’ in these proceedings is erroneous.

White applied to the Supreme Court for leave for a further appeal.

 

Supreme Court

White argued that the CoA’s decision overturned the Supreme Court’s decision in O’Keeffe v Russell [1994] 1 ILRM 137.

The determination summarises the decision in O’Keeffe as:

  1. In O’Keeffe the plaintiff succeeded in her claim against a bank but failed in her action against her former solicitors in negligence. The application for an order over arose from the fact that if a particular document was construed in one way, it favoured the bank while a different interpretation favoured the solicitors. Finlay CJ said that in those circumstances there was inevitably “a genuine alternative claim and alternative potential liability between these two defendants”. It was therefore a case in which an order over should have been made.

Granting White leave to appeal, the Supreme Court stated:

  1. Although matters of costs are often dealt with quite speedily, and are often influenced by the facts of individual cases, s.78 of the Courts of Justice Act 1936 is in theory applicable in any case against two or more defendants or respondents where a plaintiff/claimant succeeds against only some of them. Accordingly the Court considers that the application raises a point of law of some general importance. It will accordingly grant leave to appeal on the question of the correct interpretation of the section, and its applicability in the circumstances of this case.
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New Appeals: Supreme Court grants leave to appeal in three cases under the interests of justice criterion

In these determinations, ML v Minister for Justice and Equality & Ors, JCM v The Minister for Justice Equality and Law Reform & Ors and VJ v The Minister for Justice and Equality & Ors, the Supreme Court granted the Minister an extension of time and leave to appeal in these three cases. Although the Court determined that the Minister had not raised an issue of general public importance, it determined that the cases met the constitutional threshold for leave to appeal under the interests of justice criterion, Article 34.5.3° (ii). The Court stated:

Given the length of time that these proceedings have been in being, there is in the Court’s view a strong interest in having all the issues in these proceedings determined and brought to finality in one court if possible.

 

Background

The Respondents in these cases entered the State seeking asylum (in ML’s case, that was 2008). The Minister refused in all three cases and also refused their applications for subsidiary protection. All three sought judicial review of the Minister’s decisions on numerous grounds.

In a separate case, MM v Minister for Justice & Equality & Ors, the High Court (Hogan J) made a reference to the CJEU on whether the Minister was obliged to provide the applicant with a draft of the decision to refuse subsidiary protection so that the applicant could comment on it prior to conclusion of the process. The CJEU answered that question in the negative but made other observations on the subsidiary protection regime. Based on those additional observations, Hogan J granted MM an order of certiori quashing the Minister’s decision on grounds that the Minister had not granted MM an oral hearing in relation to the application for subsidiary protection. The Minister appealed that decision to the Supreme Court. The Supreme Court found it necessary to make a further reference to the CJEU for clarification. Following the CJEUs decision, the Court allowed the Minister’s appeal (judgment).

In the period between the High Court’s and the Supreme Court’s decisions in MM, the High Court (McDermott J) dismissed the grounds of appeal argued by the Respondents in this case. But, following Hogan’s precedent, he granted them orders of certiori quashing the Minister’s decisions on the ground that the Minister had not granted them an oral hearing. The Minister appealed those decisions to the Supreme Court. The Respondents lodged appeals against some of McDermott’s findings. Following the 33rd amendment to the Constitution those cases were transferred to the Court of Appeal.

After the Supreme Court’s decision in MM, the Minister applied for leave to appeal direct form the High Court in these cases. The Respondents argued that the Minister had not raised an issue of general public importance, that these cases involve the application of the Court’s decision to the facts of these cases.

Granting leave to appeal in the interests of justice, the Court stated:

These proceedings which when commenced sought relief on 14 grounds have now splintered into separate cases at different stages in different courts. Given the length of time that these proceedings have been in being, there is in the Court’s view a strong interest in having all the issues in these proceedings determined and brought to finality in one court if possible. Accordingly all the cases should be heard together. If this appeal was to proceed in the Court of Appeal, there is a possibility that the proceedings could become further fragmented and their prosecution increasingly complex and tortuous. Accordingly, the Court has concluded that it is in principle desirable to grant to the Minister leave to appeal to this Court … the Court considers in such circumstances, it is appropriate to indicate that the respondent should be entitled to cross appeal against all or some of the decision of the High Court insomuch as the learned High Court judge dismissed the other grounds upon which leave had been granted [10].

New Appeal: When can the Oireachtas provide for mandatory prison terms without trespassing on the judicial function?

In this determination, Ellis v Minister for Justice and Equality & Ors, the Supreme Court granted Ellis leave to appeal challenging the constitutionality of s 27A(8) of the Firearms Act 1964. The Court determined that the case raised the following questions of general public importance:

 

i) Whether, and in what circumstances, the Oireachtas can provide for mandatory terms of imprisonment without trespassing on the judicial function of administering justice in individual cases;

ii) Whether the ability of the Oireachtas to legislate for fixed penalties is only in breach of the separation of powers where the sentence fixed is disproportionately heavy;

iii) Whether a mandatory term of five years imprisonment in all cases of a second of subsequent offence under Section 27A of the Act is disproportionately heavy.

 

Background

In the Circuit Court, Ellis pleaded guilty to possession of a firearm contrary to s 27A(1) of the Firearms Act 1964:

27A. — (1) It is an offence for a person to possess or control a firearm F27 [ or ammunition ] in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.

Although Ellis had two previous convictions for carrying a firearm, the Circuit Court imposed a five year prison term, suspended in its entirety.

The DPP appealed the sentence to the Court of Appeal. Imposing a five year custodial sentence, the CoA held that the trial judge was bound by s 27A(8) of the 1964 Act:

(8) Where a person (except a person under the age of 18 years) —

( a ) is convicted of a second or subsequent offence under this section,

( b ) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

In 2016, Ellis issued plenary proceedings in the High Court challenging the constitutionality of s. 27A(8). Twomey J dismissed those proceedings.

Following Deaton v The Attorney General and the Revenue Commissioners [1963] IR 170 and Lynch and Whelan v Minister for Justice [2012] 1 IR 1, the CoA upheld the High Court decision.

Ellis applied to the Supreme Court for leave to appeal under Article 34.5.3° of the Constitution.

New Appeal: Does the Circuit Court have jurisdiction to determine what constitutes unlawful state aid?

In this determination, Dún Laoghaire Rathdown County Council v West Wood Club Limited, the Supreme Court granted West Wood leave to appeal on, among other questions:

Does the Circuit Court have jurisdiction to decide whether it constitutes unlawful state aid, where the Council collects commercial rates for West Wood’s leisure facilities, where those rates contribute to the costs of running the Council’s leisure facilities, and where the Council’s facilities  compete with those provided by West Wood?

 

Background

West Wood operates commercial leisure facilities within the area over which the Council sets and collects commercial rates. The Council also provides leisure facilities.

The Council issued Circuit Court proceedings against West Wood for the non-payment of rates for the years 2011, 12 & 13 (over €420,000). West Wood entered a defence claiming that the Council’s collection of rates from it, which contributes to the running costs of the Council’s leisure facilities, amounts to unlawful state aid. West Wood also submitted a counter claim for damages. The Circuit Court held that it did not have jurisdiction to make a determination on the issue of state aid.

On appeal, the High Court held:

a. The Circuit Court has jurisdiction to determine whether the rates amount to State aid.

b. The Circuit Court does not, however, have jurisdiction to determine the compatibility of the aid (if it is found to be such) with the internal market.

c. As a matter of fact, it seems to be common case that if it is State aid, it has not been notified to the Commission and to that extent a finding of a breach of Article 108(3) of the Treaty would follow.

d. However, the court must bear in mind that where the issue relates to the payment of a tax, the obligation to notify the Commission can only be relied upon by the taxpayer if their own tax payment forms an integral part of the unlawful aid.

e. If the exemption of the plaintiff’s own enterprises is established, and was unlawful, it is not a remedy for that particular illegality to grant exemption to the defendant – that would only compound the breach of the rules.

f. Separate considerations seem to apply to the counterclaim as framed in these proceedings. EU law does not require that damages be available as against the recipient of unlawful State aid. Therefore the question of damages is governed by national law, including national rules as to the monetary jurisdiction of different courts. It may be that the counterclaim could, at least to some extent, be described as being against the plaintiff in its capacity as collector of the rates rather than as recipient, but the defendant has not particularised its general claim that the rates, combined with other State funding, amount to State aid. The obligation on national courts to provide a remedy for a breach of EU law does not, it seems to me, extend to breaching national procedural rules (here, rules relating to jurisdiction) where that is not necessary under the principles of equivalence and effectiveness.

g. The defendant’s claim exceeds the jurisdiction of the Circuit Court in relation to damages. While an argument may be open that under national rules the monetary limit does not apply to a counterclaim, this issue was not addressed before me and I am proceeding on the basis that, in the normal course of events, the limit does apply. My view, therefore, would be that the Circuit Court does not have jurisdiction to entertain the counterclaim.

The High Court referred three questions to the Court of Appeal, which were answered as:

Question 1: Does the Circuit Court have jurisdiction, in proceedings issued for the purpose of the recovery of rates, to determine whether the collection of rates and expenditure of the proceeds thereof amounts to State Aid which should have been notified to the European Commission pursuant to Articles 107 – 109 of the Treaty of the Functioning of the European Union?
Answer: Yes, but only where the defence raises an issue which involves a clear error on the face of the proceedings or there is no doubt as to the illegality of the decision in the sense explained and described by the Supreme Court in Dublin City Council v. Williams [2010] IESC 7, [2010] 1 I.R. 810. The time limits prescribed by Ord. 84 also apply by analogy to any such defence or counter-claim, save that, where necessary, consideration should be given to an extension of time where the defendant establishes that it only had a real interest in the matter from the date the plaintiff commenced the present proceedings.

Question 2: Is the issue raised by the defendant, as a matter of law, a challenge to the validity of the rate itself and thus a matter to be dealt with by way of judicial review only?
Answer: No. The Circuit Court enjoys no jurisdiction to pronounce upon the general validity of the rate struck by a rating authority. While it may nonetheless entertain a defence in the limited circumstances indicated in the answer to Question 1, any such defence is, even if successfully established, personal to that defendant and does not involve any general ruling as to the validity of the rate.

Question 3: If the Circuit Court has jurisdiction in such proceedings, and were to hold that the plaintiff is entitled to judgment for the amount of the rates unpaid but also that the collection of the rates in the circumstances amounts to a State Aid which has not been notified to the European Commission, would it have jurisdiction to award to the defendant damages in an amount equal to the amount of the judgment granted to the plaintiff or in any amount in order to ameliorate the effect of the (ex hypothesi) unlawful actions of the plaintiff?’
Answer: In view of the answers just given to Question 1 and Question 2, it would be premature and unnecessary to answer this question.

 

Supreme Court

West Wood applied to the Supreme Court for leave for a further appeal. The Court determined that West Wood raised a question of law of general interest and granted it leave to appeal on the following questions:

i. Does the Circuit Court have jurisdiction, in proceedings issued for the purpose of the recovery of rates, to determine whether the collection of rates and expenditure of the proceeds thereof amounts to State Aid which should have been notified to the European Commission pursuant to Articles 107 – 109 of the Treaty of the Functioning of the European Union?

ii. Is the issue raised by the defendant, as a matter of law, a challenge to the validity of the rate itself and thus a matter to be dealt with by way of judicial review only?

iii. If the Circuit Court has jurisdiction in such proceedings, and were to hold that the plaintiff is entitled to judgment for the amount of the rates unpaid but also that the collection of the rates in the circumstances amounts to a State Aid which has not been notified to the European Commission, would it have jurisdiction to award to the defendant damages in an amount equal to the amount of the judgment granted to the plaintiff or in any amount in order to ameliorate the effect of the (ex hypothesi) unlawful actions of the plaintiff?

New Appeal: Supreme Court grants appeal in case challenging Apple’s planning permission for a data centre at Athenry

In this determination, Fitzpatrick & Anor v An Bord Pleanála & Ors, the Supreme Court granted Fitzpatrick leave to appeal from the decision of the High Court to dismiss her application for an order of certiorari quashing the Bord’s grant of planning permission for Apple to construct a data centre and associated electrical grid connection at Athenry, County Galway.

 

Background

In August, 2016 An Bord Pleanála granted Apple permission for a development at Athenry. The proposed development is on a 500 acre site. The entire masterplan is to construct eight data halls. But the initial planning application is for one data hall and an electrical grid connection. The grid connection would have a 20 acre foot print and would be capable of supplying power to eight data halls. If all eight halls are constructed, the development could use 6-8% of the electricity supply of the state (Fitzpatrick’s submission).

Apple’s Environmental Impact Assessment (EIA) only assessed the impact of one hall and the connection. Fitzpatrick argues that EU law requires that the EIA consider the impact of the complete masterplan, including the environmental effect of the greenhouse gases created in the generation of the electricity to supply eight data halls.

Fitzpatrick applied to the High Court for an order of certiorari quashing the Bord’s decision. McDermott J (here) dismissed that application.

Fitzpatrick applied to the Supreme Court for leave to appeal McDermott J’s decision. Fitzpatrick’s grounds of appeal are set out here, Fitzpatrick doc.

 

Supreme Court

The Court determined that:

8. At this point the Court is not persuaded that it can safely be said that there might not be a point of general importance concerning the application of the broad general principles identified in the case law to a category of case such as this.

Because of that finding, the Court considered it necessary to grant leave generally, with the questions for appeal to be determined during case management, giving consideration to:

(a) The scope of the grounds of appeal which ought properly be permitted to be pursued on this appeal having regard to the way in which the case was fought in the High Court;

(b) Whether the Court should direct an early and preliminary hearing on the question of whether it is necessary, in the context of the CILFIT jurisprudence, for the Court to make a reference to the Court of Justice under Article 267 of the Treaty on the Functioning of the European Union; and

(C) The putting in place of expedited directions to lead either to an early preliminary hearing of the type identified at (b) or to an expedited full hearing as the Court considers appropriate.

 

The submissions by each of the participants are attached to the determination (link at top).

ESB v Killross: ESB Chief Executive can authorise company officers to perform statutory functions

In this judgment, Electricity Supply Board & Eirgrid Plc v Killross Properties Ltd, the Supreme Court held that “through or by any of its officers” in s 9 of the Electricity (Supply) Act 1927 permits the ESB Board to authorise its Chief Executive to exercise any of the Board’s powers.

 

S 9 of the 1927 Act:

The Board may exercise any of the powers and perform any of the functions and duties (other than the making of orders) conferred and imposed on the Board by this Act through or by any of its officers or servants authorised by the Board in that behalf.

 

Background

S 53 of the 1927 Act permits the ESB Board or any authorised undertaker to “place any electric line above or below ground across any land not being a street, road, railway, or tramway”. S 53(3) requires that the Board or authorised undertaker issue a written notice to the landowner of the works to be carried out, before commencement.

A Board decision of November 1973 authorised the Chief Executive to delegate the authority to sign s 53(3) notices to nominated officers. In 2012, the Chief Executive authorised Mr Waldron, an ESB employee, to sign s 53(3) notices.

In 2013, the ESB issued an s 53 notice informing Killross that it intended to carry out works to lines across Killross’s land. Waldron signed the notice. After objections, the High Court granted the ESB injunctions and restraining orders against Killross. Killross appealed to the Court of Appeal.

The Court of Appeal alowed Killross’s appeal, finding that the Chief Executive’s authorisation of Waldron to sign the s 53(3) notice was a sub-delegation of powers which was not permitted by the 1927 Act.

The ESB applied to the Supreme Court for leave to appeal. The Court (post) determined that the ESB had raised an issue of general public importance and granted leave on the questions:

(a) whether s.9 of the Electricity (Supply) Act, 1927 and/or that Act as a whole permits the authorisation of the board of its chief executive to exercise its power under that section; and

(b) whether the issue raised at (a) above was properly before the High Court and/or the Court of Appeal.

 

Supreme Court

Finlay Geoghegan J wrote the judgment for a unanimous five judge panel. She summarised the ESB’s argument:

27. The appellants also submit that the power of the Board pursuant to s 9 of the 1927 Act must be construed in the context of the wide ranging powers, functions and duties in nature, range and geographical scope conferred on the Board by the 1927 Act. They argue that s 9 in that context could not have been intended to mean that the Board in the sense of its members (Chairman and a limited number of persons) would have to authorise every individual officer or servant through or by whom any of the powers, functions or duties imposed by the Act on the Board were to be exercised.

Allowing the ESB’s appeal, Finlay Geoghegan J cited David Dodd, Statutory Interpretation in Ireland (Tottel Publishing, 2008) [5.25]:

It follows from the pre-eminence of the text, that it is presumed that words are not used in a statute without a meaning and are not tautologous or superfluous and that effect must be given, if possible to all the words used. The legislature must be deemed not to waste its words or say anything in vain.

 

Finlay Geoghegan J stated that the words through or by in s 9 of the 1927 Act permits the ESB to exercise its powers through the Chief Executive. Therefore, in authorising Waldron to issue s 53(3) notices, the Chief Executive was exercising the ESB’s statutory power not sub-delegating his own.

Given her finding on that question, Finlay Geoghegan J stated that it was not necessary to determine whether that issue was properly before the High Court.

 

 

 

Rosbeg Partners v LK Shields: “the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act are not congruent”

In Rosbeg Partners v LK Shields Solicitors, the Supreme Court allowed LK Shields appeal against the High Court’s calculation of damages for its professional negligence in failing to register Rosbeg’s ownership of a site. The Court stated that;

where the negligence is in failing to do something which can yet be done, then, at least prima facie, the measure of damages, is first, the cost of substitute performance of the duty, and second, any foreseeable loss in value caused by the delay in doing so [34].

 

Background

In 1994, LK Shields acted as solicitors for Rosbeg in its purchase of a number of parcels of land. LK Shields does not dispute that it failed to have Rosbeg registered as owner of one of those parcels of land, nor that it was negligent in that failing. In 2008, Rosbeg agreed to sell that parcel of land to a third party for €10 million. But due to delay caused by Rosbeg not being registered as owner the purchaser refused to proceed with the sale. By the time that the registration of ownership was resolved, in October 2018, the the prospective purchaser had reduced its offer to €8 million. Rosbeg refused to sell for that price, believing the value of the property to be higher.

Rosbeg issued High Court proceedings against LK Shields seeking damages for loss suffered due to professional negligence. By the time of trial, the High Court accepted that the property had a value of €1.5 million. The trial judge (Peart J) found that Rosbeg was not foolhardy or irresponsible in its negotiations to mitigate its losses and awarded Rosbeg €11 million in damages (including consequential losses). LK Shields appealed that judgment to the Court of Appeal.

Dismissing the appeal, the Court of Appeal accepted that the trial judge’s finding that Rosbeg had an agreement to sell the property for €10 million was an inference of fact, but it determined that it was prevented by Hay v O’Grady from interfering with those findings, CoA [41]. LK Shields applied to the Supreme Court for leave to appeal that judgment.

The Supreme Court held that LK Shields had raised questions of general importance and granted leave on four questions:

(i) Whether the Court of Appeal in reviewing the decision of the High Court, and in particular in considering that the test for reviewing inferences drawn by a trial court, from oral evidence or otherwise, is to consider whether there was evidence from which those inferences could be drawn, (paragraphs 41 and 52,53 judgment CA) applied a standard of appellate review which was too low;

(ii) Whether the concept of a completed transaction as discussed in Kelleher v O’Connor [2010] IEHC 313 is applicable in a case such as this, and if so whether it was properly applied;

(iii) Whether the High Court was correct in the manner it assessed the damages where the negligence involved a failure to do something within a reasonable time, but which remained capable of being done, and was done;

(iv) Whether the application of an objective standard to the question of causation and/or mitigation of damages required anything more than the conclusions of the High Court in this case.

 

Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel. On the four questions, it held:

(i) Hay v O’Grady [1992] 1 IR 210

23 The Court of Appeal, while acknowledging the force of the defendant’s arguments nevertheless considered that on a faithful application of the well known principles of Hay v O’Grady [1992] 1 IR 210, that on balance, and not without some doubt, there was sufficient evidence before the High Court to justify the conclusions of that court in fact. I respectfully agree. The division of functions between appellate courts and trial courts means that appellate courts must respect and give due deference to a trial court’s fact finding function. The corollary of this of course, which is perhaps less often adverted to, is the importance of the trial court approaching that task rigorously, conscientiously, and testing its preliminary conclusions, with an appropriate degree of scepticism, and thereafter setting out the facts found and the inferences drawn in a way which permits review. However, in this case, I agree that the conclusions on issues of fact made in the High Court judgment are beyond challenge at an appellate level. There was evidence upon which the trial judge could arrive at the critical conclusion that Rosbeg intended to sell at a price of €10 million in late 2007, and some evidence, that it would have been able to do so. The question however remains whether on such facts the defendant’s admitted negligence gave rise to a loss in excess of €11 million.

 

(ii) Kelleher & Anor v O’Connor [2010] IEHC 313

I do not think that that case is directly relevant to this case. It distinguishes between different situations where solicitors are negligent in conveyancing matters. The court must consider [in this case] the position which would arise if the solicitor had not been negligent [29].

 

(iii) Was the High Court correct in the manner it assessed damages?

On legal causation, O’Donnell J stated:

The butterfly may beat its wings and cause an earthquake on the other side of the world, but this is not the principle on which loss is to be recoverable in law [31].

 

O’Donnell J cited a passage from Lord Sumpiton in Hughes-Holland v BPE 3 All ER 969, a case with similar circumstances, which he said neatly expressed the correct general approach:

Courts of law, said Lord Asquith in Stapley v Gypsum Mines Ltd [1953] 2 All ER 478, 489, ‘must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act are not congruent’. What Lord Asquith meant by the philosophic doctrine of causation, as he went on to explain, was the proposition that any event that would have not have occurred but for the act of the defendant must be regarded as the consequence of that act. In the law of damages, this has never been enough. It is generally a necessary condition for the recovery of a loss that it would not have been suffered but for the breach of duty. But it is not always a sufficient condition. The reason, as Lord Asquith pointed out, is that the law is concerned with assigning responsibility for the consequences of the breach, and a defendant is not necessarily responsible in law for everything that follows from his act, even if it is wrongful. A variety of legal concepts serves to limit the matters for which a wrongdoer is legally responsible. Thus the law distinguishes between a mere precondition or occasion for a loss and an act which gives rise to a liability to make it good by way of damages: Galoo Ltd (in liquidation) v Bright Grahame Murray (a firm) [1995] 1 All ER 16. Effective or substantial causation is a familiar example of a legal filter which serves to eliminate certain losses from the scope of a defendant’s responsibility. It is an aspect of legal causation. So too is the rule that the defendant cannot be held liable for losses that the claimant could reasonably have been expected to avoid: Koch Marine Inc v d’Amica Societa di Navigazione arL (“The Elena d’Amico”) [1980] 1 Lloyd’s Rep 75. But the relevant filters are not limited to those which can be analysed in terms of causation. Ultimately, all of them depend on a developed judicial instinct about the nature or extent of the duty which the wrongdoer has broken.

 

(iv) Whether the application of an objective standard to the question of causation and/or mitigation of damages required anything more than the conclusions of the High Court in this case.

On this question, O’Donnell J distinguished between negligence in failure to perform a duty which can be performed at a later date and negligence which leads to damage which cannot be remedied [34]. The circumstances of this case falls into the former, but the High Court calculated damages as though it fell into the latter. Therefore O’Donnell J found that it would have been permissible for the Court of Appeal to reexamine at the High Court’s calculation of damages.

Applying the principles identified in answering those questions, O’Donnell J stated that the correct measure of damages is the difference between the High Court’s findings on the value of the site when the sale was agreed in 2007 and the date at which the issue of registration was resolved, October 2008 [36].

O’Donnell reduced the award of damages to €5,246,500, while allowing the parties liberty to make submissions on the calculation of interest and Capital Gains Tax.

New Appeal: Does the Constitution guarantee a citizen the right to reside in the State with their non-EU spouse?

In these determinations, Gorry v Minister for Justice and Equality and Ford v Minister for Justice and Equality, the Supreme Court granted the Minister for Justice leave to appeal on the question:

What is the the correct approach required of a decision-maker in relation to an immigration decision concerning a non-national spouse of an Irish citizen where the Irish citizen is relying upon rights conferred or protected by the Constitution (and in particular Article 41) and both spouses are relying on rights under Article 8 of the European Convention on Human Rights?

 

Background

This appeal joins four cases with similar circumstances, the other two being ABM & Anor v Minister for Justice and Equality and Hussain & Anor v Minister for Justice and Equality. Each of the cases involves an Irish citizen who is married to a non-EU citizen. There is no question relating to the validity of the marriages.

Mr Gorry is an Irish citizen. Mrs Gorry is a Nigerian citizen who arrived in Ireland in 2005. She applied for asylum in her own name. That application was refused and an order for her deportation was issued in 2005. She remained in the State illegally. She met Mr Gorry in 2006. In 2009 they traveled to Nigeria to marry. Mrs Gorry applied for revocation of her deportation order based on the changes to her circumstances. That application was refused in February 2010. In 2010 Mr Gorry traveled to Nigeria to visit his wife, but he found the humidity difficult and had to return home. On return home, he suffered a heart attack, which required insertion of a coronary stent.

In November 2010, Mrs Gorry applied again for revocation of her deportation order on grounds of her husband’s health, which included a heart and a kidney condition. The Minister refused that application.

Among the reasons cited for the Minister’s decision were:

… it is not accepted that it has been shown that there are any insurmountable obstacles for Mr. Gorry to settle in Nigeria, or that treatment for his medical conditions would not be available there. In this regard, however, it is entirely Mr. Gorry’s decision whether he wishes to remain in the State and it is beyond question that this is a decision he is entitled to make. …

Having considered all the facts in this case, it is submitted that no exceptional circumstances arise in the case such that a decision to re-affirm the deportation order in respect of [Mrs. Gorry] would constitute a violation of Article 8. …

With regards to the rights of a non-national married to an Irish citizen or a person entitled to reside in the State, it is accepted that family rights under Article 41 of the Constitution arise. However, these rights are not absolute and may be restricted. As found by the Courts, there appears to be no authority which supports the proposition that an Irish citizen or a person entitled to reside in the State may have a right under Article 41 of the Constitution to reside with his or her spouse in this jurisdiction. Reference is made to the consideration of the position of the couple, as well as the rights of the State under Article 8 consideration above and the conclusions reached therein.

Mrs Gorry sought judicial review of the Minister’s decision.

In the High Court, Mac Eochaidh J granted Mrs Gorry an order of certiori quashing the Minister’s decision, finding, among other things:

Having reviewed all of these decisions, my view is that an Irish national married to a non-Irish national has a constitutional right to reside in Ireland with that other person, subject to lawful regulation. …

The starting point in any consideration where a mixed Irish and non-Irish nationality couple seeks to live in Ireland is that they have a prima facie right to do so by virtue of Article 41 of the Constitution. It is recalled that Article 41.3 pledges the State to guard with special care the institution of marriage. …

I fully agree with the decisions of the House of Lords and the Court of Appeal of England and Wales that the proper test to decide the contest between State rights and family rights, and in particular, to decide whether a national of a deporting or excluding State should join his or her partner in a third country is not assessed by reference to an insurmountable obstacles standard, but rather by applying the age-old and most reliable of legal standards in administrative law: is it reasonable to expect a spouse to join the removed or excluded spouse in his or her country of residence? Thus the respondent erred in law because he refused to revoke the Deportation Order on the basis of the failure to demonstrate the existence of an insurmountable obstacle to the second named applicant’s emigration to Nigeria to take up his family life with his wife. There is no such test. …

 

 

Court of Appeal

Upholding the High Court’s order, the Court of Appeal a different conclusion on the rights guaranteed under Article 41. Its judgment concluded:

(1) The Minister did not consider the constitutional rights of the applicants, Mr. and Mrs. Gorry, in accordance with law.

(2) Mr. Gorry as an Irish citizen does not have an automatic right pursuant to the Constitution to cohabit with his non-national spouse in Ireland. Such a constitutional right would appear to be contrary to the inherent power of the State to control immigration subject to international obligations. This is so even if one considers that any such constitutional right is a prima facie right or is not an absolute right and may be limited.

(3)However Mr. and Mrs. Gorry, as a lawfully married couple and a family within the meaning of Article 41, and Mr. Gorry as an Irish citizen, have constitutionally protected rights to have the Minister consider and decide their application with due regard to:

(i) the guarantee given by the State in Article 41.1.2 to protect the family in its constitution and authority;

(ii) a recognition that Mr. and Mrs. Gorry are a family, a fundamental unit group of our society possessing inalienable and imprescriptible rights which rights include a right to cohabit which is also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Article 41.1 and Article 40.3.1)

(iii) a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State has guaranteed in Article 41.1 to protect; and

(iv) a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Article 2 refers to as his “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.

(4)The Constitution places corresponding obligations on the Minister to take the decision as to whether or not to permit the non-national spouse of an Irish citizen reside in Ireland with due regard to each of the above constitutional rights of the applicants. However, the Minister, in taking the decision, may also take into account other relevant considerations in accordance with the State’s interests in the common good.

(5) The “insurmountable obstacles” test set out by the European Court of Human Rights remains applicable to a consideration by the Minister (if necessary) of the application pursuant to his obligations under s. 3 of the European Convention on Human Rights Act 2003 having regard to Article 8 of the European Convention on Human Rights relating to deportation of the non-national spouse of an Irish citizen.

 

Supreme Court

Although Mr and Mrs Gorry have since separated and do not want to take part in further proceedings, the Supreme Court granted leave for a further appeal stating:

 

  1. It is the view of the Court that this is an appropriate case in which to grant leave to appeal. The proper approach of the Minister to be taken on an application for revocation or for a visa to enter the country in respect of a non-citizen married to an Irish citizen spouse is one which has resulted in inconsistent decisions in a number of High Court decisions. The High Court, in two of the cases referred to above, quashed the decision of the Minister and the Court of Appeal likewise concluded that the decisions of the Minister should be quashed in those two cases and in the third case, the Court of Appeal took a different view to the High Court leading also to a quashing of the Minister’s decision in that case. In the two cases where the appeal by the Minister was refused, the view taken by the Court of Appeal in regard to how the Minister should consider these issues was itself significantly different. In those circumstances, the Court is satisfied that this is an issue of public importance that requires to be clarified.
  2. The Court notes that there is an issue as to the mootness of this case. Given that the legal principles at issue on this appeal are identical to those raised in the Ford and A.B.M. appeals and in another appeal in a case, Hussain and Anor. v. The Minister for Justice and Equality, it is proposed to list the four cases together for case management. It would appear appropriate to deal with the four cases on the basis that one or possibly two of the appeals would be listed together for hearing whilst the remaining cases would be left to await the decision in the case or cases permitted to proceed. The question of which of the cases should proceed in the first instance will be a matter to be considered and determined at case management.

New Appeal: Should fines imposed before commencement of the Fines (Payments and Recovery) Act 2014 be dealt with under that Act or the law at the time?

In this determination in two joined cases, Owens v Director of Public Prosecutions & Ors and Dooley v Director of Public Prosecutions & Ors, the Supreme Court granted the DPP leave to appeal on the question:

Whether unpaid fines that had been imposed by way of sentence before the coming into force of the Fines (Payments and Recovery) Act 2014 should, after that date, be dealt with under that measure or under the law as it stood at the time of sentence.

 

Background

Prior to the commencement date of the Fines (Payments and Recovery) Act 2014 (January 2016), both respondents were convicted at district court level and issued with fines of €500. Both failed to pay the fines and were, subsequent to the commencement of the 2014 Act, sentenced to terms of imprisonment for that failure to pay.

Both respondents challenged the lawfulness of the warrants on the basis that they were deprived to the protections of s 7 of the 2014 Act.

Quashing both warrants, the High Court (Eagar J) stated that if the 2014 Act was only to act prospectively it would create a two tier system, that the DPP failed to show that this would not lead to unfairness and injustice, and that it would deprive the respondents and society of the protections of the 2014 Act. Eagar J directed that the DPP initiate proceedings under s 7 of the 2014 Act.

The DPP appealed that decision to the Court of Appeal, arguing that if the Óireachtas had intended the 2014 Act to act retrospectively it would have expressly stated so.

The Court of Appeal (here) dismissed the DPP’s appeal, distinguishing between a statute that creates a new offence (which cannot apply retrospectively) and a statute such as the 2014 Act, which creates a new mechanism of collecting unpaid fines.

The Supreme Court determined that the case raised an issue of general public importance and granted the DPP leave to appeal.

M v Minister for Justice & Equality: Unborn’s constitutional rights limited to Article 40.3.3°

In this judgment, M v Minister for Justice & Equality, a unanimous seven judge panel of the Supreme Court held that the Constitution does not guarantee any rights to the unborn other than as expressly guaranteed by Article 40.3.3°:

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

The Court was assured that it is correct in that interpretation by reference to the qualifications to Article 40.3.3° inserted by the Thirteenth and Fourteenth Amendments:

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

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

The Court stated:

10.57 Given this clear objective, the terms of the two amendments are particularly revealing in the present context. It is stated in each case merely that “this subsection shall not limit” travel or the provision of information as the case may be. It is clear therefore that the constitutional text considered that the only relevant possible restraint on the provision of information in relation to termination of pregnancy or travel for such purpose was to be found in the terms of Article 40.3.3 and in particular the subsection introduced by the Eighth Amendment. This interpretation of the Constitution adopted by the People is inconsistent with the possibility of the existence of any constitutionally protected pre-existing right whether to life generally, or to any other possible natural rights of the unborn. If such rights were considered to exist prior to 1983 (and 1992) then in theory they could have been invoked and asserted to prevent the provision of information in relation to, or travel for the purposes of, termination. The conclusion must be that the only relevant right of the unborn in contemplation at the time of the Thirteenth and Fourteenth Amendments was that contained in Article 40.3.3 and accordingly it was only necessary to qualify that right to ensure freedom to travel or receive information. Even if, therefore, at some abstract level it was possible to argue that the Constitution may have been interpreted more broadly, the terms of the Thirteenth and Fourteenth Amendments make it clear that the Constitution must now be understood as guaranteeing the rights of the unborn in terms of Article 40.3.3 and not otherwise.

 

Background

M is a Nigerian national who entered the State in 2007 and sought asylum. In 2008 his asylum application was rejected, as was his application for subsidiary protection. In October 2008 the Minister issued an order for M’s deportation. He remained in the State illegally. In 2015 M applied to the Minister to have the order revoked. One of the grounds stated was that M was the father of an unborn child who would be an Irish citizen. M argued that the Minister was obliged to consider the rights that the Constitution guaranteed to the unborn, such as the right to have its father present in the State. The Minister rejected that application. M applied to the High Court  for judicial review of the Minister’s decision. Humphreys J granted the orders:

(i) that leave be granted in accordance with the latest amended statement of grounds;
(ii) that there be a declaration that the Minister, in considering an application under s. 3(11) of the Immigration Act 1999, is required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application, including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application;

(iii) that the remaining reliefs sought be refused; and

(iv) that the respondents’ undertaking not to deport the first named applicant continue until withdrawn in accordance with its terms, and that there be liberty to apply in the event that the respondents seeks to so withdraw it.

Although the child was born beforehand, in the course of his judgment, Humphreys J also held that the Constitution guaranteed rights to the unborn other than the right to life. He interpreted child within Article 42A to include the unborn. He stated:

In addition to these rights, other significant rights of the unborn child are recognised, acknowledged or created by common law or statute, in turn reflecting inherent natural and constitutional rights of the unborn which are implied by the constitutional order.

The State lodged an appeal of that decision with the Court of Appeal, while also applying to the Supreme Court for a leapfrog appeal. The Court granted that application as it determined that it was an issue of general public importance to clarify the extent of the rights that the Constitution guarantees to the unborn. And the exceptional circumstances criteria was established given that the Government was proposing to hold a referendum on whether to repeal Article 40.3.3° and there is an urgent need for clarity on whether the Constitution guarantees rights to the unborn other than in Article 40.3.3°.

 

Supreme Court 

 

In a single judgment issued by the seven judge panel, the Court allowed the State’s appeal in part, finding that the Constitution does not guarantee any rights to the unborn other than as expressly provided for in Article 40.3.3°. The Court rejected the proposition that the Constitution guaranteed the unborn natural law rights, citing the judgment in Information (Termination of Pregnancies) Bill 1995:

The Court does not accept this argument. By virtue of the provisions of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic state.

The Court also rejected the argument that the right to life of the unborn was recognised in case law prior to the Eighth Amendment ( Magee v Attorney General, Norris v Ireland), holding, in line with authority, that any judicial statements to that effect were obiter.

 

On the broader issues relating to the facts of this case, the Court held:

(i) The Minister is obliged to consider the fact of pregnancy of the partner of a proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.
(ii) Moreover the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.

(iii) The weight that the Minister must accord to these factors is not an issue in this case. It is not the case that the Minister, having considered these matters, is precluded from refusing to revoke the deportation order.

(iv) Accordingly the decision of the High Court on this aspect of the case was correct and the declaration made is upheld. It follows that the Minister’s appeal against that declaration will be dismissed.

(v) However, neither the common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on, when analysed and understood, support the High Court’s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3.

(vi) The most plausible view of the pre Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove. In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn are confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.

(vii) While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3. It is accepted that the right to life is not implicated in the deportation (or revocation) decision in this case. The High Court determination in this regard is reversed.

(viii) The High Court determination that the unborn is a child for the purposes of Article 42A is also reversed.

(ix) The Court is satisfied that it is not necessary to address on this appeal any argument in relation to the status of the Family, which it was accepted was not part of the High Court reasoning in coming to its conclusion.

(x) Accordingly, the formal order of this Court will be to dismiss the Minister’s appeal and affirm the declaration made by the High Court.

 

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