Chief Justice calls for clearer legislation on environmental considerations in planning

The Courts Services released the following statement:

Today at the launch of the Planning, Environmental and Local Government Bar Association, the Chief Justice the Hon Mr Justice Frank Clarke made a call for both our national and European legislators to enact clearer legislation in the environmental area, to avoid drawn out processes of litigation and major projects faltering as a result.

Chief Justice Frank Clarke said that without clearer legislation:

There will continue to be projects which, even though they may successfully clear all hurdles at the end of the day, may suffer by being held up for too long.

The Minister for Housing , the AG, and Dr Aine Ryall of UCC were also due to speak at the launch.

 

Conclusion of Chief Justice’s Speech:

“I acknowledge that we in the courts need to play our part in ensuring that our systems are as good as they can be so as to lead to timely disposition of environmental litigation. But as long as legislators both in Europe and in Leinster House produce unclear or unduly complex legislation there will undoubtedly be arguments which will go beyond the unstateable or the trivial and which will take a lot of effort to resolve. As long as that remains the case then projects are going to be held up. The solution lies at least as much in the hands of legislators in producing greater clarity as it does in the courts and, from my perspective, lies even more on the legislative side. This is a cry which is not based on a complaint that the policy behind any particular piece of legislation is wrong. That is not a judge’s business. It is a cry for clearer legislation which will make the resolution of environmental litigation easier and therefore quicker. And a final point. If we keep amending legislation, as we have been doing a lot in recent times, then we create constant and shifting uncertainty. It is almost inevitable that there will be some issues of interpretation with any new model. If we keep changing the model than we perpetuate the period during which the interpretation of the existing model has not settled down.

If there is a political demand for greater speed in the resolution of environmental cases then a significant part of the solution lies in the production of clear and well worked out legislation both at the European and National level. If that does not happen then there will continue to be cases which will not be clear cut and which, under the CILFIT jurisprudence of the CJEU, may have to be referred to the European Court and there will continue to be projects which, even though they may successfully clear all hurdles at the end of the day, may suffer by being held up for too long. The solution to that problem is not just one to be found within the planning decision makers or the Courts but, to quite a significant extent, in legislators”.

Chief Justice’s Full Speech.

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New Appeal: What are an employer’s obligations under s 16 of the Employment Equality Act 1998?

In Nano Nagle School v Daly, the Supreme Court granted Daly leave to appeal on the correct interpretation of s 16 of the Employment Equality Act 1998, which implemented the provisions of Council Directive 2000/78/EC.

 

Background

Daly was a special needs assistant (SNA) in the School, which provides for the needs of children with profound disabilities. In 2010 she suffered injuries which led to her confinement to a wheelchair. In 2011 she sought to return to work. An occupational therapist determined that there are 16 main duties required of an SNA, that Daly would be unable to perform seven of those, but that she would be able to perform nine of those duties with some adaptations to the facilities.

 

The relevant sections of the 1998 Act are outlined in the determination:

Under s.16(3)(b) an employer is under an obligation to take appropriate measures where needed in particular case to enable a person who has a disability to participate in employment unless the measures would impose a disproportionate burden on the employer. However s.16(1) provides that nothing in the Act is to be construed as “requiring any person to……. retain an individual in the position….. if the individual is not (or as the case may be is no longer) fully competent and available to undertake and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be performed”. The next step is that under s.16(3)(a) a person with a disability is fully competent and capable of undertaking any duties is appropriate measures may be provided by the person’s employer. Finally , for these purposes s 16(4) (a) provides that “appropriate measures” in relation to a person with a disability means effective and practical measures to adapt a place of business to the disability concerned which under s16(4) (b) may include “distribution of tasks”.

 

The School concluded that Daly was unfit to return to work. Daly made a complaint to the Equality Tribunal. The Equality Officer decided that there was no discrimination. The Labour Court overturned that decision on grounds that the school failed to give adequate consideration to all the possible options, such as redistributing the tasks Daly was unable to perform among other SNAs. The High Court held that there was no error in law in that decision. However the Court of Appeal allowed the School’s appeal on grounds that, as the School was not required to redistribute tasks it could not have been obliged to consider that option. Daly applied to the Supreme Court for leave to appeal.

 

Supreme Court

The Court determined that given that there were such divergence in the interpretation of an important provision which derived from a directive of EU law, the case met the constitutional threshold for leave to appeal on whether the Court of Appeal erred in its interpretation of s 16 of the 1998 Act.

New Appeal: Is the defence of officially induced error (or entrapment by estoppel) available in this jurisdiction?

In this determination, Director of Public Prosecutions v Casey, the Supreme Court granted Casey, former chief executive of Irish Life and Permanent, leave to appeal on whether the trial judge should have allowed him to raise the defence of officially induced error at his trial for conspiring to mislead investors (Anglo Irish case). The Court granted leave on the questions:

whether the defence of “officially induced error” is available in this jurisdiction and, if so, what its parameters are and whether it was open to the applicant on the evidence in this case.

 

Background

The Dublin Circuit Criminal Court found Casey (and others) guilty of a single count of conspiring to mislead investors by circulating funds between Irish Life Assurance and Anglo-Irish Bank for the purpose of inflating Anglo’s deposit balance by €7.2 billion. At trial, Casey sought to introduce a defence of officially induced error, which is known in the US as entrapment by estoppel. It was his case that the financial regulator, the Central Bank and the Department of Finance knew of and approved of the scheme.

The trial judge refused to allow Casey raise that defence, finding that the evidence presented could only go towards mitigation.

The Court of Appeal dismissed Casey’s appeal, setting out the test for a defence of officially induced error as:

(i) The accused must have considered the legal consequences of their actions and sought legal advice;

(ii) The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question;

(iii) The legal advice must have been erroneous;

(iv) The legal advice must have been relied upon;

(v) The reliance must have been objectively reasonable.

Casey sought leave to appeal to the Supreme Court. He argued that the authorities from the US and Canada did not support the CoA’s finding that it was necessary that an accused show that they had obtained legal advice on the illegal act.

The Supreme Court determined that Casey had raised an issue of general public importance and granted leave to appeal.

AG v Davis: Article 40.3 of the Constitution does not prevent extradition of sufferer of Asperger’s Syndrome

In this case, Attorney General v Davis, the Supreme Court found that the courts must consider the effect that incarceration in another jurisdiction will have on the psychological wellbeing of persons who are subject to an extradition request. But in this case Davis did not establish that the fact that he suffered from Asperger’s Syndrome should prevent the High Court from ordering his extradition to the US to stand trial on charges relating to narcotics trafficking, computer hacking and money-laundering.

 

Background

Davis suffers from Asperger’s Syndrome and argues that, if extradited to the US, the conditions of his detention there would breach his rights under Article 40.3 of the Constitution and Article 3 of the ECHR.

In the High Court (here), McDermott J rejected that argument, stating:

145. I am not satisfied that the respondent has established that there are substantial grounds for believing that if extradited to the United States he will be exposed to a real risk of being subjected to treatment of an inhuman or degrading nature by reason of the conditions of confinement to which he will be subject and/or the fact that he has AS and suffers from depression and generalised anxiety with thoughts of self-harm and suicide prompted and exacerbated by a fear of isolation and separation if imprisoned in the United States.

Davis appealed the High Court’s extradition order to the Court of Appeal under s 29 of the Extradition Act 1965. S 29 limits an appeal from the High Court to a point of law. Davis argued that:

(i) The learned trial judge erred in deciding that surrender of the appellant for extradition did not give rise to a real risk of a violation of his Article 40.3 rights under the Constitution and of his rights under Article 3 ECHR.

(ii) The learned trial judge erred in deciding that the surrender of the appellant for extradition did not give rise to a real risk of a violation of his rights under Article 8 ECHR and his rights under Article 40.3.2 of the Constitution to the integrity of the human mind and personality.

The Court of Appeal (here) dismissed Davis’s appeal on grounds that his arguments challenged the trial judge’s finding of fact and did not involve a point of law, as required by s 29 of the 1965 Act.

Davis applied to the Supreme Court for leave to appeal the Court of Appeal’s decision.

Granting leave to appeal, the Supreme Court determined that Davis did raise a point of law of general public importance:

16. The situation with regard to this case is that there is a serious diagnosis. There is also a factual analysis in the High Court. An error of fact may in exceptional cases become an error of law. Constitutional protection may extend to stopping an extradition on medical or psychiatric grounds but, while many cases have been cited, there is not yet a definitive pronouncement on the particular circumstances.

The Court granted leave on the following issues (subject to possible modification during case management):

(a) whether issues of fact can ever be regarded as issues of law pursuant to s. 29 of the Extradition Act 1965, and in what circumstances such an issue of law might arise out of fact;

(b) whether the State is obliged to protect vulnerable persons suffering from mental illness under the Constitution within the context of an extradition application and the circumstances under which that duty is engaged so that an extradition request should not be granted;

(c) whether in this case the condition of Gary Davis is so severe in fact that, as a matter of law, he may not be extradited to the United States of America.

 

McKechnie J wrote the judgment for the Court. On the three questions approved by the Court for appeal, he stated:

123. In answer to the questions posed, it may be said, first, that issues of fact can sometimes be regarded as issues of law for the purposes of an appeal under section 29(5) of the 1965 Act, as amended. Such will occur in the circumstances set out earlier in this judgment, which has in effect reiterated well-known principles regarding the manner in which issues of fact may give rise to issues of law generally.

124. Second, the State is obliged under the Constitution to protect vulnerable persons suffering from mental illness within the context of an extradition application; indeed such duty extends to all persons, not just those suffering from mental illness. It is for the proposed extraditee to establish by evidence that there are substantial grounds for believing that if he were extradited to the requesting country he would be exposed to a real risk of being subjected to treatment contrary to Article 3 ECHR or equivalent fundamental rights under the Constitution.

125. Finally, having reviewed the evidence in its entirety, I am satisfied that McDermott J. was entirely justified in reaching the conclusion that Mr. Davis has not demonstrated such a risk, a conclusion which is objectively justified on the facts of this case. Accordingly, I would dismiss his appeal.

New Appeal: Did prison practice of slopping out amount to inhuman and degrading treatment?

In this determination, Simpson v Governor of Mountjoy Prison & Ors, the Supreme Court granted Simpson leave for a leapfrog appeal from the High Court:

  1. against the High Court’s refusal to make a declaration that the conditions of his detention in Mountjoy Prison amounted to inhuman and degrading treatment; and,
  2. against the High Court’s refusal to grant him an order for damages even though it made a finding that there had been a breach of his constitutional right to privacy and personal dignity.

 

Background

Simpson was an inmate in Mountjoy Prison from February to September 2013. In July 2014 he issued High Court proceedings alleging that the condition of his detention amounted to inhuman and degrading treatment, that the practice of slopping out using a chamber pot in a multi-occupancy cell amounted to a breach of his right to privacy and dignity for his private life as guaranteed by Article 40.3.1 and 40.3.2 of the Constitution and Article 3 of the ECHR, and that the conditions of his detention amounted to a breach of his right to bodily integrity.

The High Court judgment (here) gives a summary of Simpson’s allegations, including:

(7) Due to double cell occupancy the dimensions of the cell breached the recommended minimum of 11sq. meters.

(8) There was no in cell toilet and running water in the cell.

(9) The chamber pot was too small to be used more than twice without being emptied. The Plaintiff had to urinate into empty milk cartons for this reason. He was obliged to defecate into a refuse bag because the chamber pot was too small for defecation. Urine would splash onto his feet and legs and onto the cell floor while urinating and defecating. He had to defecate on a newspaper placed on the floor of the cell.

(10) He had to plead with staff to let him out and was also denied access to the slopping out area as other inmates were using it. He did not have a set time when he was allowed out of his cell and he did not know in advance when he would be released and that he experienced stomach cramps while waiting.

(11) On occasion the Plaintiff was confined in a cell for 30 hours without being let out to the landing or yard. Exercise could be from 9am to 10am, one day, but the Plaintiff would not be released then to the following evening. On some occasions he was only let out for ten minutes to use the toilet. Sometimes he did not have time to slop out when released from lockup so bags and bins would be left in the cell for longer than a day.

(12) The Plaintiff would have to run to and from the toilets and slop out area as prison officers were anxious to speed up the process. The toilets were sometimes filthy and they were frequently blocked. There was usually urine on the ground in the cubicles and the whole toilet area stank terribly. The toilets and urinals were meant to be cleaned by inmates from D2 and D3 but this service was not reliable as the cleaners were usually heavy drug users. Sometimes the toilet area was so dirty that they refused to clean it.

(13) Showering was unpleasant due to atrocious conditions in the toilet and shower area. In June/July 13 the Plaintiff was twelve days without a shower. He could not walk in bare feet in the shower. Wash towels and bed sheets were not changed frequently enough and the Plaintiff used the same towel for a period of weeks for all purposes.

(14) the slopping out regime was very chaotic and the process itself was extremely unhygienic. The Slop hoppers were frequently blocked or were broken and urine and faeces spilled onto the floor. Disinfectant sprays were rarely provided and the Plaintiff had no time to clean pots and buckets properly.

(15) Inmates would on occasion empty chamber pots into sinks or down the shower.

(16) There was bad lighting in the shower and an atrocious smell and green mould in the ceiling. Water leaked from the roof and razor blades could sometimes be found sticking up. Walls were covered in dust and dirt. There were plastic bags and boxer shorts strewn on the floor and the downstairs shower area was filthy.

(17) the ventilation was completely inadequate and there was no air conditioning and little air circulating. It was freezing in winter time and stiflingly hot in summer and there was no window pane in some of the cells and inmates would use cardboard and duvets to block holes. The smell was overpowering when someone defecated and urinated in the cell.

(18) The washing facilities were inadequate, the water was easily contaminated and had to be filled from taps located directly over the slop hopper.

White J refused to make a declaration of inhuman and degrading treatment. He did make a declaration that slopping out in multi-occupancy cells breached Simpson’s right to privacy and personal dignity, but refused to make an award of damages, stating:

456. While the court sympathised with the Plaintiff in his distress about the conditions of his imprisonment which were unacceptable in many respects, he exaggerated the harshness of his conditions of imprisonment and frequently gave untruthful evidence. His credibility was seriously damaged in a fair, methodical cross examination.

457. The Court could not contemplate awarding the Plaintiff damages because of his untruthful and exaggerated evidence.

Simpson applied to the Supreme Court for leave to appeal directly from the High Court. The Court found that Simpson had raised three issues of general public importance:

  1. What are the overall arching principles by which it must be determined whether treatment of a prisoner amounts to inhuman and degrading treatment?
  2. What is the proper approach to weighing the positive and negative factors in reaching that conclusion?
  3. In what circumstances is it appropriate for a court to refuse an order for damages notwithstanding a finding that there has been a breach of constitutional rights?

 

The Court found that it was appropriate to approve a leapfrog appeal as there are potentially 1,600 similar cases, with proceedings commenced in approximately 1,000.

 

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.

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).

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