O’Sullivan v Sea Fisheries Protection Authority: Minister’s administrative scheme breached fair procedure

Here, O’Sullivan v Sea Fisheries Protection Authority & Anor (Minister for Agriculture Food and the Marine), the Supreme Court overturned the High Court’s decision in this case in part and upheld it in part.

The Court found that Council Regulation (EC) 1224/2009 severely straitjackets Member States’ policy decisions on applying points for breaches of fishing rules; it only leaves open the choice of mechanism for applying points to fishing licences. Therefore, the Minister had not acted beyond his powers in creating a stand-alone administrative system for the application of points under the European Union (Common Policy) (Points System) Regulations 2014.

The Court, however, upheld the High Court decision that the administrative regime introduced under the 2014 Regulations breached the standard of fair procedure required by the Constitution, and the Regulations were therefore invalid.



O’Sullivan owns a fishing vessel, The Tea Rose. In April 2015, Sea Fisheries Protection Officers boarded the vessel as it returned to harbour. After inspection and weighing of the fish on board, a garda cautioned the Master of the vessel and brought him before Bantry District Court to be charged for under-recording his catch contrary to the Sea Fisheries Regulations 2011. The following day, O’Sullivan requested that the Sea Fisheries Protection Authority suspend the application of points to the vessel’s licence under the 2014 Regulations pending the outcome of the criminal proceedings. The Agency informed the O’Sullivan that it had no discretion to defer the assignment of points to a fishing licence once it is notified of a serious infringement.

2014 Regulations

Under the 2014 Regulations, the Officer in charge of an inspection of a vessel issues a report of any infringements to the Master of the vessel. The Master has the opportunity to submit comments to the Officer, who includes those in the report to the Authority. The Authority appoints a panel to review the seriousness of any infringements. Where the Authority finds that there has been a serious infringement it determines how many points to assign to the licence and notifies the Master (or licence holder) with information on the right to appeal that decision in writing within 21 days. An appeals officer (Ministerial appointment) may allow an appeal where it is proven on the balance of probability that an infringement did not occur. A licence holder may appeal to the High Court on a point of law. The High Court’s decision is final and conclusive. There is no provision to defer the appointment of points pending a High Court decision.

High Court

The High Court granted O’Sullivan an injunction preventing the Authority from applying points to his fishing licence, prior to a full hearing of his challenge to the 2014 Regulations. O’Sullivan argued that the 2014 Regulations breach a number of Articles of the Constitution: Art 15.2.1, which vests sole power to make laws in the Oireachtas; Art 34.4, which does not permit a minister to restrict the right of appeal from a decision of the High Court; and O’Sullivan argued that the 2014 Regulations went beyond the limited functions of a judicial nature which Art 37.1 permits an administrative body to perform.

O’Conor Tony J held that the 2014 Regulations were ultra vires s 3 of the European Communities Act 1972 and were, as a consequence, invalid having regard to the provisions of Art 15.2.1 of the Constitution.

The State sought leave to appeal directly to the Supreme Court. The Court granted leave to appeal on three issues (subject to refinement during case management):

(i) That the trial judge was incorrect to conclude that the Regulations contained measures which were not necessitated by Ireland’s membership of the European Union by virtue of those measures going beyond the principles and policies contained within relevant EU law;

(ii) That, consequently, the determination of the trial judge that the Regulations were ultra vires s.3 of the European Communities Act and thus invalid having regard to Art. 15 of the Constitution was incorrect; and

(iii) That the trial judge failed to have adequate regard to the requirement that it must be assumed that all procedures mandated by the Regulations will be operated fairly and in accordance with the principles of natural justice.


Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel.

On review of Council Regulation (EC) 1224/2009, O’Donnell J found that it operated as a “regulatory straitjacket” on Member States, setting down uniform rules on the method of enforcement. Among other things, the Council Regulation set out the categories of transgressions attracting points; the number of points for each category of transgression; and the number of points which lead to the suspension of a licence [41].

Drawing a comparison between the facts of this case and Maher v Minister for Agriculture, O’Donnell J held that the matters dealt with in the 2014 Regulations were “incidental, supplemental and consequential” to the provisions of the Council Regulation, and the 2014 Regulations did not contravene Article 15.2.1 [43].

But on an overall assessment of the fairness of the procedures introducedthe requirement that the licence holder initiate proceedings and carry the burden of proof, the serious consequences for a licence holder of losing a licence, and the limitation on the right to appeal to the High Court on a point of lawO’Donnell J held that the High Court decision that the 2014 Regulations are invalid must be upheld on the narrow grounds of breaching fair procedure [44-52].


Permanent TSB v Langan: Limited jurisdiction in Art 34.3.4 can mean limited by value or by category of case

In Permanent TSB plc v Langan & Anor [2017] IESC 71, the Supreme Court held:

  1. Article 34.3.4 of the Constitution’s requirement that the Circuit Court’s jurisdiction must be limited can mean limited by value or limited by category of case.
  2. The Circuit Court cannot become a surrogate court of unlimited jurisdiction, but this case did not necessitate that the Court define that threshold.
  3. At the level of principle, “all domestic residential possession actions” is sufficiently limited for the Óireachtas to confer jurisdiction on the Circuit Court for all such actions, without limitation on the value of affected properties.
  4. S 22(1) of the Courts (Supplemental Provisions) Act 1961 Circuit Court, which limits jurisdiction to properties with a rateable value not exceeding €253.95, does not restrict jurisdiction on properties with no rateable valuation.
  5. A plaintiff must establish jurisdiction by demonstrating that the property has a rateable valuation not exceeding €253.95 or that the property has no rateable valuation.



Langan fell into arrears in his mortgage to Permanent over six properties. Permanent issued Circuit Court proceedings seeking possession of the six properties. The civil bills stated that the annual rateable value for each of the properties is below €235,95. In February 2015, the Circuit Court granted orders for possession for all six properties. Lanigan appealed to the High Court.

Section 22 of the Courts (Supplemental Provisions) Act 1961 (here) limits Circuit Court jurisdiction to properties below a defined rateable charge (currently €235.95). S 15 of the Valuation Act 2001 made residential properties un-rateable.

(The Land and Conveyance Law Reform Act 2013 confers the Circuit Court with jurisdiction in possession proceedings for all  principle private residential (PPR) properties mortgaged after 1 December 2009. None of the properties in this case were Langan’s PPR).

In May 2015, the High Court delivered judgment in Bank of Ireland v Finnegan (here). Murphy J held that the Circuit Court does not have jurisdiction to determine cases relating to un-rateable properties. However, in November 2015, Noonan J, in the High Court, held that the Circuit Court does have jurisdiction in such cases, Bank of Ireland v Hanley (here).

When Langan’s case came to hearing, he added grounds that the Circuit Court did not have jurisdiction in his case due to the 2001 Act. As there were conflicting High Court judgments on the issue, Baker J made a case stated to the Court of Appeal. She submitted five questions:

(1) If a property is not rateable by virtue of the Valuation Act 2001, or otherwise, is the Circuit Court’s jurisdiction under s. 22(1) of the Courts (Supplemental Provisions) Act 1961 excluded?

(2) In the alternative does the Circuit Court have jurisdiction by virtue of the property not having a rateable valuation that exceeds €253.95?

(3) Is the Circuit Court entitled to proceed to judgment, unless it is shown by evidence that there is a rateable valuation which exceeds €253.95?

(4) If there is no certificate of rateable valuation, how does the court exercise its power to estimate rateable valuation under s. 31 of the County Officers and Courts (Ireland) Act 1877?

(5) Is the plea in a Civil Bill taken together with evidence on affidavit of a provisional estimate of rateable valuation, sufficient “legal evidence” on which the court can make an estimate rateable valuation for the purposes of s. 31 of the County Officers and Courts (Ireland) Act 1877?


Court of Appeal

Hogan J (here) held that the Circuit Court does not have jurisdiction over properties that are un-rated.

Permanent sought leave to appeal to the Supreme Court.


Supreme Court

Clarke CJ wrote the judgment for a unanimous five judge panel.

Allowing Permanent’s appeal, he held that the literal interpretation of the 1961 Act confers a general jurisdiction on the Circuit Court, subject to an exclusion that applies only to properties having a rateable valuation exceeding €235.95 [5.3].

That interpretation would permit the Circuit Court to accept cases without limitation on the value of un-rated properties. But Clarke CJ found that “[t]here is no reason in principle why this Court should lean in favour of an interpretation which increases the costs of litigants by requiring “small” cases to go to the High Court over one which might permit some “big” cases to be heard in the Circuit Court” [6.6].

Clarke CJ then examined whether there is a constitutional prohibition on the Óireachtas conferring such a broad jurisdiction on a court of local and limited jurisdiction. He held that there is no “constitutional difficulty” in limiting the Circuit Court’s jurisdiction by category of case instead of by the value of a claim (such as in the Land and Conveyance Law Reform Act 2013) . Possession actions for residential properties is not an overbroad category [7.12].


Full judgment of the Supreme Court here.



New Appeal: Must a valid committal order record that the judge considered the option of community service?

In this determination, Maguire v Governor of Mountjoy Prison, the Supreme Court granted Maguire (and others) leave to appeal from the Court of Appeal on two issues: “the obligations of a judge of the Circuit Court dealing with a District Court appeal in a criminal case where the appellant does not appear, and the question whether a valid committal warrant must record consideration by the judge of the option of community service”.



Maguire is one of five plaintiffs in joined cases being appealed from the Court of Appeal. What the cases have in common is that the plaintiffs were sentenced at district court level to terms of imprisonment of less than 12 months. They each lodged appeals to the Circuit Court. But none of the plaintiffs turned up to court on the dates of their appeals. In each case, the Circuit Court struck out the appeal and affirmed the order of the District Court.

The plaintiffs appealed separately to the High Court. They argued that their committal orders were invalid as the orders did not record that the Circuit Court judges gave consideration to substituting the term of imprisonment imposed for community service. The plaintiffs relied on s 3 of the Criminal Justice (Community Service) (Amendment) Act 2011, which provides:

3. Section 3 of the Principal Act is amended:-

(a) by the substitution of the following subsection for subsection (1):-
(1)(a) Where a court by or before which an offender stands convicted, is of opinion that the appropriate sentence in respect of the offence of which the offender is convicted would but for this Act, be one of imprisonment for a period of 12 months or less, the court shall, as an alternative to that sentence, consider whether to make an order (in this Act referred to as a ‘community service order’) in respect of the offender and the court may, if satisfied in relation to the offender, that the provisions of section 4 have been complied with, make a community service order in accordance with this section.

The High Court dismissed four of the appeals and allowed one, Brennan, distinguishing the case on facts (the order stated that an appeal was heard). All four unsuccessful appellants lodged appeals to the Court of Appeal. The Governor of Castlerea Prison appealed the decision in Brennan.

The Court of Appeal (here) dismissed the four appeals, and allowed the appeal in Brennan. Mahon J stated that it must be presumed that judges of the District Court and Circuit Court are aware of their obligations to consider community service instead of prison without the need to openly articulate or record that they have done so [55].


Supreme Court

Applications for leave to appeal to the Supreme Court were lodged in the five cases. Granting leave, the Court determined that the issues raised by these cases meet the constitutional threshold of having general public importance.

New Appeal: Must a deportation order state the date by which the subject must leave the State?

In this determination, Khan v Minister for Justice and Equality, the Supreme Court granted Khan leave for a leapfrog appeal from the High Court on the question:

Is a deportation order valid when it fails to specify on its face the date by which the subject must leave the State, and remain thereafter out of the State?



The determination gives little background to this case, and there is no published High Court judgment. The information that is available is that the Minister issued an order for Khan’s deportation. The order did not state a date before which he must leave the State. Khan applied to the High Court for certification of a case on the question approved here. His argument is that the Minister’s order was invalid as it did not meet the requirements of s 3 of the Immigration Act 1999. The 1999 Act states:


3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.


The High Court refused to certify the question Khan raised, holding that there is no conflict between the authorities on the issue.

Khan applied to the Supreme Court for leave to appeal that decision on grounds that the Court had granted leave to appeal in another case on the same question. The determination names that case as SE v Minister for Justice and Equality [2017] IESCDET 02. (But the Courts Services’ website lists no determination in that name, and a determination in a different case carries that citation).

Granting leave, the Court determined that Khan had raised an issue which has application beyond this case. The Court left open for case management the issue of whether this case should proceed along with SE or be adjourned until SE is resolved.

New Appeal: What is the correct test for lawful comparative advertisement?

In this determination, Aldi Stores (Ireland) Ltd v Dunnes Stores, the Supreme Court granted Aldi leave to appeal on the question: what is the correct test for lawful comparative advertisement under the European Communities (Misleading and Comparative Advertising) Regulations 2007?



In 2013, Aldi applied to the High Court for an injunction prohibiting Dunnes Stores from continuing with a comparative advertisement campaign which compared various Dunnes and Aldi products. Aldi alleged, among other things, that Dunnes’ campaign did not use comparable products and was unlawful under the European Communities (Misleading and Comparative Advertising) Regulations 2007.

In the High Court, Dunnes argued that food products are comparable if they have a comparable nutritional value, and cosmetic products are comparable if they fulfill the same need. But Cregan J (here) was persuaded by the test proposed by Aldi’s expert witness who introduced his five cornerstones of comparison test: comparisons on quantity, provenance, nature, substance and quality. For example, Dunnes compared its own 23 meter long toilet roles to Aldi’s 29 meter rolls; Aldi’s pork sausages carried the Bord Bia symbol but Dunnes’ didn’t; Aldi’s anti-wrinkle cream contained sun protection, but Dunnes’ didn’t; and Aldi’s ketchup contained over 70% more tomatoes than the ketchup that Dunnes compared it to for price. Dunnes compared those products on price alone.

Cregan J held in Aldi’s favour.

The Court of Appeal (here) overturned that decision (in part), holding that the High Court had applied the wrong test.


Supreme Court

Aldi applied to the Supreme Court for leave to appeal. One of the grounds Aldi argued was that the Court of Appeal dismissed the High Court’s test but did not define what the correct test is.

Granting leave, the Court determined that Aldi had, on that ground, raised an issue of general importance and granted leave on that issue only.

New Appeal: Did the Superior Court Rules Committee act ultra vires in restricting time to apply for certiorari?

In this determination, O’S v Residential Institutions Redress Board & Ors, the Supreme Court granted O’S an extension of time to apply for leave and granted leave for a leapfrog appeal direct from the High Court. The two questions for appeal are:

1. Can a change in jurisprudence on s 8(2) of the Residential Institutions Redress Act 2002 (extending time to apply for redress) be grounds for an extension of time for leave to appeal?

2. Did the Superior Court Rules Committee act ultra vires, creating an impermissible restriction on the right of access to the Courts, by restricting the High Court’s discretion to extend time to apply for certiorari under Order 84 Rule 21(3)(b)(i) and (ii)?



In 2008, O’S made an application to the Redress Board for treatment he received in an industrial school. Under s 8(1) of the 2002 Act, the statutory period to apply for redress expired in 2005. In 2012, the Board refused O’S’s application for an extension of time under s 8(2) of the 2002 Act. In 2014, O’S requested a consideration of that decision. Later that year, the Board replied that it had exhausted its statutory function. In 2015, O’S requested that the Board reconsider its decision in light of a Supreme Court decision on the Board’s overly narrow interpretation of s 8(2) of the 2002 Act.

In 2016, O’S applied to the High Court for judicial review of the Board’s 2012 decision to refuse an extension of time. In that application, O’S also sought a declaration against the Superior Courts Rules Committee and the Minister for Justice that Order 84 Rule 21(3)(b)(i) and (ii) are an impermissible restriction on the right of access to the Courts.

Order 84 Rule 21 states:


Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—
(3) (a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by the applicant for such extension.
In 2017, the High Court (McDermott J) dismissed O’S’s application. O’S applied to the Supreme Court for leave for a leapfrog appeal.
Supreme Court
As there are ten similar cases which stand adjourned before the High Court, and as Order 84 has general application, the Court determined that O’S had met the constitutional requirement that an appeal raises a legal issue of general importance. And as the Redress Board is required to be dissolved once this case is finalised (plus the ten similar cases), and as an appeal to the Court of Appeal will not narrow the issues to be resolved, the case met the constitutional requirement of presenting exceptional circumstances warranting a leapfrog appeal from the High Court.

Supreme Court to deliver judgment in five cases on Tuesday, 12th December

The Supreme Court diary lists five cases for judgment on Tuesday, 12th December.  The Court granted leave to appeal under the new constitutional regime in three of those cases. I have previously written posts previewing those three cases and provide links to those posts below. The other two cases are appeals predating the 33rd Amendment and the creation of the Court of Appeal. In the fourth case, I provide a link to the Court of Criminal Appeal judgment certifying a question of law of exceptional public importance (DPP v Rattigan). The fifth case is likely an appeal from a 2011 High Court decision relating to the Hepatitis C Compensation Tribunal (M v Minister for Health and Children).

O’Sullivan v The Sea-Fishiries Protection Authority concerns the restrictions Article 15 of the Constitution places on ministers when transposing EU regulations into Irish law: can a minister introduce measures that go further than is required by the EU Regulation? The High Court held that the removal of a right to appeal from a decision of the High Court created under the EU (Common Fisheries Policy) (Points System) Regulation 2014 was ultra vires. The Authority is appealing that decision.

Crayden Fishiries v The Sea-Fishiries Protection Authority is an appeal by the Authority against the High Court judgment that the procedure for placing points on a fishing vessel’s licence under the EU (Common Fisheries Policy) (Points System) Regulation 2014 are contrary to fair procedures.

Permanent TSB v Langan concerns whether the Circuit Court has jurisdiction to hear repossession proceedings for un-ratable properties. The Court of Appeal held that, as s 22 of the Courts (Supplemental Provisions) Act 1961 limits Circuit Court jurisdiction to properties below a defined rateable charge (currently €235.95), and as the properties in question are un-rateable, the Circuit Court did not have jurisdiction to hear Permanent’s application for possession. Permanent is appealing that decision.

DPP v Rattigan concerns the interpretation of s 16 of the Criminal Justice Act 2006, which provides an exception to the hearsay rule of evidence. S 16 allows the admission of out of court statements where the witness refuses to give evidence, denies making the statement, or gave evidence in court which is inconsistent with the statement sought to be admitted.

The Court of Criminal Appeal (O’Donnell J) certified a question of law of exceptional public importance:

Does s 16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the said Act?

M v Minister for Health and ChildrenI can find only one 2011 High Court judgment which may relate to this case. In that judgment, M was appealing an award made by the Hepatitis C Compensation Tribunal, and, as a preliminary issue, the High Court held that the Minister could not cross-appeal on the issue of causation.

New Appeal: Can a sentenced person, whose case is not finalised, rely on a Declaration of Unconstitutionality from another case?

Can a person sentenced under a procedure, subsequently found to be unconstitutional, and whose proceedings have not been finalised, challenge the lawfulness of his detention?

In this determination (Wansboro v DPP), the Supreme Court granted Wansboro leave for a leapfrog appeal from a decision of the High Court on that question.



In 2013, Dublin Circuit Court sentenced Wansboro to three years imprisonment, suspended for three years. In 2015, Wansboro pleaded guilty to an offence of dangerous driving causing death at a date in 2014, also before the Dublin Circuit Court. The trial judge sentenced Wansboro to five years imprisonment for the dangerous driving offence. Also, on an application under s 99(9) and (10) of  the Criminal Justice Act 2006, the trial judge ordered that Wansboro serve the previously suspended sentence prior to commencement of the five year sentence. Wansboro lodged an appeal against both of those orders.

Subsequently, in 2016 (Moore v DPP), the High Court held that s 99(9) and (10) of the 2006 Act was unconstitutional.

When his appeal came before the High Court, Wansboro sought to rely on Moore, arguing that the Declaration of Unconstitutionality had a blanket effect. However, in the intervening period, the High Court had dismissed cases similar to Wansboro’s. And the Court of Appeal has upheld two such decisions on appeal.

The High Court (Faherty J) followed precedent and dismissed Wansboro’s appeal on grounds that, as he had not challenged the constitutionality of s 99(9) and (10) before sentencing, he had acquiesced in the Circuit Court’s exercise of a non-existent jurisdiction. Therefore there was no breach of fair procedure or due process of law.


Supreme Court

Wansboro argued that, as his proceedings had not been concluded at the time the High Court (in Moore) made its Declaration of Unconstitutionality of s 99(9) and (10), the High Court erred in its holding that the Declaration did not have a blanket effect and that he could not rely on that Declaration to challenge the lawfulness of the re-activation of the suspended sentence.

The Court determined that Wansboro had met the constitutional threshold for a leapfrog appeal. Firstly, as there are numerous similar cases, he raised a point of law of general importance. And secondly, given that the Court of Appeal would be bound to follow its precedents in the two similar appeals, an intermediate appeal to that court would be futile and a waste of resources.

New Appeal: is s 11 of Criminal Law Amendment Act 1888 (upheld in Norris v Ireland) incompatible with the Constitution?

In this determination, PP v Judges of Dublin Circuit Court, the Supreme Court granted PP leave to appeal on three questions:

(i) Is the consent of both parties an essential ingredient of the offence of gross indecency under s 11 of the Criminal Law Amendment Act 1885?

(ii) Having regard to the answer to the first question, does the applicant have locus standi to challenge the compatibility of the section with the Constitution?

(iii) Having regard to the answers to the foregoing questions, is s 11 of the Act compatible with the Constitution?



The DPP prosecuted PP before Dublin Circuit Court on a number of counts under s 11 of the Criminal Law Amendment Act 1888. The DPP alleges that PP committed the offences between 1978 and 1980 when he was a school teacher and the complaint was aged between 15 and 17 years. PP denies the charges.

The 1888 Act states:

11. Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.

The Supreme Court upheld s 11 in Norris v Ireland 1984 IR 36. The European Court of Human Rights later held that s 11 breached the European Convention on Human Rights. The Oireachtas repealed s 11 in 1993. The DPP is prosecuting these offences under s 27 of the Interpretation act 1995.

PP has challenged the compatibility of s 11 with the Constitution. The High Court dismissed PP’s challenge. The Court of Appeal upheld that decision. The Supreme Court determined that the case raises questions of general public importance, as the DPP asserts an entitlement to use s 11 to prosecute historical offences committed before 1993.

JGH v Residential Institutions Review Committee: foreseeability is within the definition of abuse in the Residential Institutions Redress Act 2002,

In JGH v Residential Institutions Review Committee & anor the majority of the Supreme Court held that the common law principles of negligence, including foreseeability, apply to the interpretation of “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child” in the Residential Institutions Redress Act 2002.



As a child, during the 1960s, H was a patient and resident of  a hospital. In 1962, the Hospital made a misdiagnosis that H had rheumatic fever and transferred him to a nursing home (a private, voluntary institution). A consultant at the Hospital was a director of the Nursing Home. H was in the Nursing Home for a period of approximately two years on the first occasion and again for a period of one year in 1965. The Nursing Home applied treatments that had no scientific justification and that were seen as heterodox even by the standards of that time. That included keeping children in a sedated state for long periods.

It is not contested that the treatment that H received in the Nursing Home constituted abuse within the meaning provided under the 2002 Act. Nor is it contested that he could recover compensation in a tort action against the Hospital for negligence in transferring him to the Nursing Home. But there is no finding of negligence against the Hospital. The Act provides for compensation without a finding of negligence. An applicant need only show that they were a resident of a scheduled institution and suffered an injury consistent with abuse.

The issue on appeal is whether H is entitled to compensation under the Residential Institutions Redress Act 2002, as the Hospital is one of the scheduled institutions under the 2002 Act, but the Nursing Home isn’t.

The questions certified by the Court were:


1. Could a decision by a scheduled institution as prescribed by the 2002 Act to transfer a child to a non-scheduled institution constitute abuse within the meaning of the Residential Institutions Redress Act 2002?

2. In making a determination that such a decision constituted abuse within the meaning of the Act, was the Respondent entitled to apply common law principles of negligence including the principle of foreseeability, having regard to

(a) the definition of abuse in s. 1 of the Act, which includes “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”, and
(b) the prohibition on addressing or making findings relating to any issue of fault or negligence set out in s.5 of the Act?


Residential Institutions Redress Act 2002

S 7 of the Act provides:

(1) Where a person who makes an application (an “applicant”) for an award to the Board establishes to the satisfaction of the Board—

(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident,

the Board shall make an award to that person in accordance with section 13 (1).



Writing for the majority of the Court, Clarke CJ held, in line with precedent, that:

The legislation should be given a generous interpretation in favour of affording compensation because that was the clear intent of the Oireachtas. However, in so doing the Court can only adopt an interpretation which can be said fairly to arise on the wording of the legislation itself. To go beyond a meaning which can fairly be attributed would be to impose a liability on the State which it could not properly be said that the Oireachtas intended to accept [4.2].

Under the principle of foreseeability for recovery in tort, Clarke CJ believed that H would be entitled to recover damages for the abuse he suffered in the Nursing Home if he established that the Hospital was negligent in transferring him there. Pointing to s 10 of the Act, which allowed for recovery where injury was the result of abuse within a scheduled institution, Clarke CJ held that the Act was sufficiently ambiguous so as not to prohibit H recovering compensation for his injury suffered in the Nursing Home. Given that ambiguity, applying a generous interpretation towards the awarding of compensation, and because H’s injuries were foreseeable, Clarke CJ proposed allowing H’s appeal and returning the case to the Review Committee for assessment of damages. MacMenamin, Dunne and O’Malley JJ concurred.


O’Donnell J dissented. He agreed with the majority that the Act must be interpreted broadly. However, he interpreted s 7 as limiting compensation to applicants who could demonstrate injury consistent with abuse while resident in a scheduled institution. If H’s claim was to succeed, his transfer to the Nursing Home must be defined as abuse. But that would be inconsistent with s 1 of the Act, which provides for redress for residents of scheduled institutions transferred to laundries. Such claimants must show injuries consistent with abuse while at the laundries. The act of transfer is not considered abuse in itself. Although H’s treatment in the Nursing Home may be abuse as defined in the Act, it did not occur while he was resident in the Hospital. O’Donnell J did not accept that H’s transfer to the Nursing Home was abuse as defined in the Act, and stated: It is simply inappropriate to introduce part only of the reasoning process in private law claims when addressing a question of the interpretation of a statutory scheme [59].


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