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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Supreme Court refuses leave to appeal to set aside notice of discontinuance

In this determination, Allen v Minister for Education, the Supreme Court refused Allen leave to appeal against the High Court’s refusal to allow him withdraw his notice of discontinuance of proceedings against the State, as “having had the benefit of legal advice and representation, the applicant freely made a decision to discontinue his proceedings”.

 

Background

In 2003, Allen issued proceedings against the State for sexual abuse suffered in a primary school run by Christian Brothers. It was one of a number of similar cases before the courts at the time, the most prominent being, Louise O’Keeffe v Leo Hickey. In 2008 the Supreme Court refused to overturn the High Court’s refusal to award O’Keeffe damages against the State.

The State proposed to the plaintiffs in the remaining cases that it would not pursue them for costs if they filed notices of discontinuance. Allen was one of many plaintiffs to file such notices. O’Keeffe took a case against the State to the European Court of Human Rights. The ECHR found that the State had breached O’Keeffe’s Art 3 and Art 13 rights.

After that, Allen, and a number of others, applied to the High Court seeking a motion to have his notice set aside. The High Court refused. The Court of Appeal rejected his appeal.

Allen applied to the Supreme Court for leave to appeal, arguing that as there were a number of similar cases, he met the constitutional threshold of being a matter of public importance. And secondly, Allen argued that an appeal was necessary in the interests of justice as the Court of Appeal decision had denied him a domestic remedy where his case comes within the decision of  O’Keeffe in the ECtHR.

Refusing leave, the Court stated:

  1. The point is made by the respondent that the applicant voluntarily chose to discontinue proceedings which he had issued. It is undoubtedly the case that having had the benefit of legal advice and representation, the applicant freely made a decision to discontinue his proceedings. The fact that Ms. O’Keeffe brought proceedings to the European Court of Human Rights and obtained a decision to the effect that there had been a violation by Ireland of the Convention does not change that. In other words, the subsequent decision of the European Court of Human Rights does not affect the basis of the decision of the Court of Appeal in relation to the setting aside of or withdrawal of the notice of discontinuance. The applicant had a domestic remedy through his proceedings and chose to discontinue those proceedings. While the Court acknowledges the difficult situation in which the applicant now finds himself, the applicant has been unable to meet the Constitutional threshold necessary to allow an appeal to this Court.

GRA V Minister for Public Expenditure & Reform: Gardai had no entitlement to specific consultation process on terms of sick leave

In Garda Representative Association v Minister for Public Expenditure and Reform, the Supreme Court accepted, for the purposes of this case, that due to the statutory interference with the Gardai’s constitutional right join a union, it may be required as a matter of proportionality that they have a right to consultation with the Minister regarding their conditions of employment and remuneration. But there is no right to any specific form of consultative process. Given that, the Minister had not breached any entitlement to consultation in introducing regulations altering the sick pay entitlements of public servants, including Gardai.

 

Background

Garda Síochána Act 2005

Section 122 of the 2005 Act provides:

(1) The Minister may, after consulting with the Garda Commissioner and with the approval of the Government, make regulations for the management of the Garda Síochána, including regulations relating to any or all of the following matters:

(g) the pay and allowances of members, including the conditions under which they are payable;

 

Section 122(6) provides:

Before making regulations under subsection (1)(g) or (i), the Minister shall—

(a) submit a draft of the regulations to the associations referred to in section 18 representing the ranks and grades in the Garda Síochána who would be affected by the regulations, and

(b) consider any representations made to him or her in respect of the draft regulations by any of those associations.

 

In response to budgetary constraints at the time, the Government introduced the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013.

Section 58B provides:

(1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—

(a) the whole amount of the remuneration that would otherwise accrue to the person,

(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or …

Section 58C provides:

This Part has effect notwithstanding—

(a) any provision made by or under—

(i) any other Act,

(ii) any statute or other document to like effect of a university or other third level institution,

(iii) any circular or instrument or other document,

(iv) any written agreement or contractual arrangement,

or

(b) any verbal agreement, arrangement or understanding or any expectation.

 

Under the 2013 Act, the Minister introduced the Public Service Management (Sick Leave) Regulations 2014, reducing the entitlements of public service workers, including Gardai, to sick pay.

The GRA applied to the High Court for a declaration that the 2014 Regulations did not apply to its members. The High Court (Kearns P) rejected that application, as the relief sought would amount to an untenable limit on the power to legislate.

The Court of Appeal (Finlay Geoghegan J & Hogan J) rejected the GRA’s appeal, finding that that the High Court decision was correct.

The GRA applied to the Supreme Court for leave to appeal.

 

Supreme Court

The Court determined that the GRA had raised questions of general importance and granted leave. Those questions were defined during case management to:

(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?

(b) Can the doctrine of legitimate expectation arise in the particular context at issue in this appeal?

(c) Where a representation is made, if, which is denied, any such was made here, which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?

(d) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

Clarke CJ wrote the judgment for the unanimous five judge panel. He concluded:

10.1 In summary, therefore, for the reasons set out earlier in this judgment, I have first concluded that the relevant statutory regimes do not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the 2013 Act. The Regulations were introduced under that Act. That Act is, in its terms, stated to apply notwithstanding any other legislative provision.

10.2 I have, for the purposes of the argument, been prepared to accept that it is possible that the GRA was entitled to some engagement prior to the making of such Regulations on one or other or both of two bases. The first being the possibility that the restrictions placed on the ability of An Garda Síochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted. The second is that it may again be arguable that the history of the engagement between the parties is such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded. However, I have also concluded that under neither of those headings is it arguable that there could be a right to any specific form of process. Rather the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations.

10.3 On that basis I have considered the facts and concluded that no breach of any such general entitlement has been established. There was a lengthy engagement between what might loosely be called the Government side and the GRA. On that basis I have come to the view that, even if any generalised right of the type which I have described could be said to arise on any of the legal bases put forward, no breach of any such entitlement has been established. For that reason I do not consider it necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached.

10.4 For those reasons I would dismiss the appeal and affirm the orders of the Courts below.

New Appeal: Can a court make a finding of fact contrary to testimony based on uncorroborated documents?

In this determination, RAS Medical Limited, t/a Park West Clinic v The Royal College of Surgeons Ireland, the Supreme Court granted the Royal College leave to appeal on the question:

is ever appropriate for a court, whether it be a court of first instance or an appellate court, to reach a finding of fact contrary to the testimony of a witness and based upon documents which have not been put to the witness in cross-examination?

 

Background

RAS is a private health clinic specialising in cosmetic surgery. The Royal College is a postgraduate medical training body. The Medical Practitioners Act 2007 delegates responsibility to the Royal College for, among other things, “the ongoing maintenance of the professional competence of medical practitioners” s 91(1).

The RAS proposed to run an event titled “One Day Masterclass on Polyurethane Breast Implants and Cosmetic Surgery”. The Royal College refused to accredit the event for continuing professional development (CPD). The RAS sought judicial review of that decision seeking an order of certiorari quashing that decision. As there was a dispute as to a matter of fact, the trial judge ordered discovery of documents. The High Court refused the RAS application. RAS appealed to the Court of Appeal.

The Court of Appeal overturned the High Court decision based on acceptance of information in the discovered documents which conflicted with the sworn testimony of a Royal College witness.

The Royal College applied to the Supreme Court fro leave to appeal that decision.

 

Supreme Court

The Court determined that the Royal College had raised an issue of general importance and granted leave on the above question, stating:

  1. While it by no means arises in every case, there are certain judicial review proceedings, of which this is one, where discovery is ordered. It is well settled that discovered documents cannot be admitted in evidence unless the parties agree, or in plenary proceedings an appropriate witness is called to prove the document in question. Sometimes the parties may agree that documents can be admitted on the basis that their existence is accepted but without it being agreed that the documents in question can be taken to be evidence of the truth of their contents. Sometimes, on what is frequently referred to as the Bula/Fyffes basis, parties may go further and agree that documents discovered may be admitted as prima facie proof of the truth of their contents, at least insofar as such evidence may be tendered against the party producing the document in question and subject to the right of the party concerned to contest the accuracy of the facts set out in the documents in question. However, Courts have repeatedly emphasised the importance of there being clarity as to the basis on which documents are thus admitted. It is particularly important that discovered documents are not simply handed into court without there being a clear understanding as to the basis on which the judge is to consider the documents in question.

 

  1. Against that backdrop the Court is satisfied that the circumstances in which certain discovered documents came to be before the courts below, be considered by those courts and form the basis, at least in part, of the judgment, gives rise to an issue of general public importance not least because it is of some significance to bring further clarity to the way in which discovered documents can be deployed in all proceedings but in particular proceedings which are, prima facie, likely to be heard on affidavit.

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.

 

Background

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?

 

Background

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.

 

Background

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).

 

Judgments

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].

 

Two judgments listed for this week: On the Extradition Act 1965 and the Residential Institutions Redress Act 2002

The Supreme Court diary has two judgments listed for this week, both on Tuesday, 24th of  October. Both cases are appeals from the Court of Appeal and both were heard by a panel of five judges.

 

H v The Residential Institutions Redress Review Committee & anor

As a child, during the 1960s, H was a patient and resident of  the National Children’s Hospital. In 1962, the Children’s Hospital suspected H had rheumatic fever and transferred him to St Gabriel’s Hospital (a private, voluntary institution). H was in St Gabriel’s for a period of approximately two years on the first occasion and again for a period of one year in 1965. St Gabriel’s 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 H suffered abuse in St Gabriel’s. The issue is whether H is entitled to compensation under the Residential Institutions Redress Act 2002, as the Children’s Hospital is one of the institutions covered under that legislation, but St Gabriel’s isn’t. The Court certified the following questions:

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?

 

Attorney General v Lee

In 2011, the United States of America applied to have Lee extradited from Ireland to stand trial for 51 offences, including unlawful money transactions, wire fraud and aggravated identity theft. The US alleges that all of the offences took place within the US, and no part of the offences took place within this state. S 15 of the Extradition Act 1965 (amended since the commencement of this case) states:

Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.

Lee has established that he was outside of the US at the time that some of the offences took place, and that it is likely that he was within the jurisdiction of the State. Granting leave, the Court’s determination concludes:

19. In the view of this Court, the following points only properly arise. These are, whether the Court of Appeal erred in deciding that:

(a) there was a distinction to be made between an offence which was regarded as having been committed within the State, and an offence committed in another state, over which extraterritorial jurisdiction is claimed under Irish Law?
(b) in determining that, in the latter case, such an offence could not be said to be an offence which “is regarded under the law of the State as having been committed in the State”, for the purposes of s.15 of the Extradition Act, 1965?

This Court will also consider whether:
(c) the judgment of this Court in Attorney General v. Pocevicius [2015] IESC was correctly decided?
20. The appeal is, therefore, confined to determining whether, in the event that any of the matters specified at (a), (b), (c) above are resolved in favour of the applicant, such finding would result in a reversal of the decision of the Court of Appeal.

 

Hanrahan v Minister for Agriculture: Plaintiff can recover for both capital loss and loss of profit for breach of contract

In this judgment (here), the Supreme Court upheld the High Court’s award to Hanrahan for capital loss as well as for loss of profit, for the Minister’s breach of contract.

 

Background

Hanrahan is a farmer and was the plaintiff in the case of Hanrahan v Merck, Sharp and Dohme (Ireland) Limited [1988] I.L.R.M. 629, where he successfully recovered for loss due to nuisance and and wrongful discharge of noxious fumes by the defendant firm. Due to the harm that those discharges caused to Hanrahan’s herd, the Minister suspended his milk quota for a time; illegally, Hanrahan claimed. Hanrahan issued proceedings against the Ministwr for loss resulting from the suspension (in a separate case from this). Hanrahan claims that the non-payment of compensation from that case caused him financial difficulty, resulting in an inability to purchase feed for his herd.

In late 2005 Hanrahan made representations seeking payments from the Minister to enable him to purchase livestock feed. The Minister arranged for Department of Agriculture vets to visit Hanrahan’s farm on a number of occasions. In early 2006 Department Officials seized most of Hanrahan’s herd on welfare grounds. After Hanrahan issued court proceedings, the Minister agreed to return the herd. But the Minister ordered the sale of the herd, instead. Hanrahan issued High Court proceedings seeking damages.

In the High Court, McMahon J (here) held that the Minister did cause damage to Hanrahan through breach of contract. The Minister’s expert witness calculated damages at €1,979. Hanrahan’s expert calculated damages at €834,000. McMahon J disregarded both and assessed damages at €141,000 for the replacement of the herd; €145,000 for loss of profit from the date of breach to the date of judgment; and awarded €25,000 for stress, upset and inconvenience.

 

Supreme Court

The Minister appealed on grounds that Hanrahan could not recover for both capital loss and loss of profit and on grounds that he could not recover for stress, upset and inconvenience resulting from breach of contract. Hanrahan cross appealed.

The Minister’s appeal relied on Cullinane v British Rema Manufacturing Co Ltd [1954] 1 Q B 292; and Addis v Gramophone Company Ltd [1909] A C 488, which established that, in general, damages for breach of contract do not include damages for distress, upset and inconvenience.

The judgment in Cullinane contained an analogy of a cow that was purchased for £100 and was to produce four gallons of milk a day. But the cow only produced one gallon a day and was consequently only worth £10. The judge stated that, in such a case, a plaintiff could only recover the difference in value or the loss of profit from the low yield. But not both.

Writing for the three judge panel in this case, O’Donnell J distinguished the facts of this case from that analogy. In this case, Hanrahan was not left with an inferior herd, but with no herd. And given the outlay of capital that would be required to replace the herd, no possibility of replacing it to mitigate his losses. And that was known by the Minister. Therefore Hanrahan was entitled to the replacement cost for his herd and the profit he would have earned from the herd until the date of judgment.

O’Donnell J allowed the Minister’s appeal on the issue of damages for stress, upset and inconvenience, which is not recoverable for breach of contract (Addis). He dismissed Hanrahan’s cross appeals under the rule that an appellate court will not overturn the decisions of a trial judge which are supported by evidence.

O’Donnell J discussed a number of circumstances where awards for capital loss will differ. Assets can depreciate or appreciate over time. For example, a fleet of vehicles can depreciate, whereas a rental property could appreciate. Awards that a court should make will vary accordingly.

O’Donnell J was critical of the seeming lack of impartiality by expert witnesses, stating:

4. … Experts are permitted to give evidence of their opinion, while lay people are not. This is because experts are understood to have professional expertise, and to owe an obligation to the Court to give their own expert opinion to the Court. I do not wish to criticize the individuals who gave evidence in this case, since this was a difficult case and in any event the “high ball – low ball” approach which occurred here is only an example of a more widespread phenomenon. … An expert who merely advances a party’s case rather than his or her own independent opinion may, and perhaps should, be criticised, sometimes severely.

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