Leopardstown Club v Templeville Developments: Court of Appeal exceeded its jurisdiction in overturning High Court’s finding of fact

Here, the Supreme Court overturned the decision of the Court of Appeal in this case and affirmed the judgment of the High Court (Charleton J). Answering the questions certified, the Court held:

(i) First, in essence, did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady? I would answer this in the affirmative, for the reasons given.

(ii) Second, the issue of misrepresentation and the application of the correct law. The Court was not asked to overrule Gahan v Boland. Once there was evidence to support the learned High Court judge’s finding, as to the credibility of Mr Smyth, this was a finding of primary fact which should not be set aside by an appellate court as it was supported by credible evidence. Further aspects of the law on misrepresentation did not arise.

 

Background

In 1998 Leopardstown granted Templeville a 35 year lease over land at Leopardstown race course. Templeville constructed a sports club including indoor and outdoor tennis courts. However, the relationship between the parties has been fractious and has resulted in many legal disputes. In 2011 there were nine separate disputes between the parties. The parties entered into a complex mediation process which led to a Mediated Settlement Agreement to resolve all of the outstanding disputes. The Agreement was made a rule of court.

That did not resolve the disputes, though. In 2012 Leopardstown issued High Court proceedings seeking a declaration that the Agreement was still in force and seeking money owed, damages and other reliefs. Templeville counterclaimed that Leopardstown induced it into the Agreement by misrepresentation regarding two ESB cables which run under the property.

In the High Court (here), Charleton J granted Leopardstown the orders sought, stating:

70. It is impossible not to be satisfied that Templeville had knowledge of the transverse ESB cable. I am satisfied that Philip Smyth [Templeville director], in claiming no knowledge of the cable is giving evidence that, in these circumstances, a court could not accept.

Templeville appealed that decision.

 

Hay v O’Grady [1992] 1 IR 210

 

The rule from Hay v O’Grady was stated by by McCarthy J at 217:

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. …

 

Court of Appeal

 

Allowing Templeville’s appeal, the Court of Appeal issued two judgments. Hogan J (here) stated:

123. Third, the findings made by the High Court to the effect that Templeville had such knowledge cannot be sustained. Specifically, the trial judge did not apply the correct legal test in assessing this question, since he should have considered whether Leopardstown had established on the balance of probabilities that Templeville had actual and complete knowledge of the existence of the traversing cable in the manner required by the Supreme Court in Gahan. It was not enough, for example, to point to the existence of ESB manholes on the tennis court site in order to fix Templeville with knowledge, as this would go constructive rather than actual knowledge only.

Finlay Geoghegan J (here) wrote a concurring judgment finding that the evidence before the trial judge did not establish that Templeville had complete knowledge of the existence of the two cables at the time it entered the Agreement. She stated at [31]:

The onus on this issue of actual and complete knowledge is on Leopardstown and it does not appear that it can be considered as discharged by such credibility findings of the trial judge.

 

Leopardstown sought leave to appeal to the Supreme Court. The Court granted leave on two issues of general public importance:

(a) The principle and application of the rule in Hay v O’Grady [1992] I.R. 210 and the jurisprudence derived therefrom. The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts and a matter of general public importance. In essence did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady?

(b) The test and criteria to establish misrepresentation are matters of law which were addressed by this Court in Gahan v Boland [1985] ILRM 218. The Court was not asked to overrule Gahan v Boland. An issue was raised as to the nature of what should be proved in order to show misrepresentation, and, in particular, whether it must be shown that the representee was actually induced to enter into the transaction by reason of misrepresentation. Can constructive knowledge be a defence? (It was noted that since s. 86 of the Land and Conveyancing Law Reform Act, 2009, there are new rules regarding constructive knowledge. The Act of 2009 is not in issue on this appeal).

 

Supreme Court

Chief Justice Denham wrote the judgment for the five judge panel.  MacMenamin J wrote a concurring judgment. Allowing Leopardstown’s appeal, Denham CJ held that Gahan v Boland did not create an onus on Leopardstown to establish that Mr Smyth had conscious knowledge of the two cables on the day he entered the Agreement [97]. There was ample evidence to support the trial judge’s finding that Mr Smyth had knowledge of the cables, and that was sufficient to defeat Templeville’s claim of misrepresentation [98]. And Hay v O’Grady establishes that an appeal court should not set aside a trial judge’s finding of fact which is supported by credible evidence.

The Court overturned the decision of the Court of Appeal and affirmed the High Court orders.

Advertisements

DPP v Wharrie: Not a mitigating factor that accused did not give false evidence at trial

Here, in answer to a case stated from the Court of Criminal Appeal, the Supreme Court held that:

it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.

 

Background

In 2007 Perrie Wharrie and three accomplices were arrested in County Cork when their rib sunk as they attempted to bring 1.5 tonnes of cocaine ashore. One of the men pleaded guilty to offences under the Misuse of Drugs Acts. The three others were convicted before a judge and jury. At trial, Wharrie did not give evidence. His accomplices, however, gave evidence which the judge described at sentencing as an “insult to the intelligence of the jury”. The trial judge determined that it was a mitigating factor that Wharrie did not give false evidence, but sentenced him to 30 years imprisonment.

The Court of Criminal Appeal upheld the trial judge’s finding that it was a mitigating factor that Wharrie did not give false evidence. But it found that the trial judge did not give Wharrie credit for that. The Court of Criminal Appeal reduced Wharrie’s sentence to 22 years and allowed a further five years reduction in mitigation.

The DPP certified a question for appeal to the Supreme Court:

Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?

 

Supreme Court

Charleton J wrote the judgment for a five judge panel. Overruling the statements on mitigation by the trial judge and the Court of Criminal Appeal, he stated:

30. … An accused person is entitled to contest a case. While he or she may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others. Perjury is a separate crime and it is not a factor of aggravation of an existing offence. Finally, as a matter of principle, since perjury is a criminal offence as well as a grave moral wrong, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.

New Appeal: Re force majeure under s 16 of the European Arrest Warrant Act 2003

In this determination, Minister for Justice & Equality v Skiba, the Supreme Court granted Skiba leave to appeal against the Court of Appeal’s decision to allow his surrender (already completed) to the Republic of Poland. Although the Court determined that an appeal would be largely moot, it allowed an appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

 

Background

The Polish authorities requested Skiba’s surrender under a European arrest warrant to serve a sentence of imprisonment. The High Court granted the order. The Irish and Polish authorities arranged for Skiba’s transfer on a commercial flight. Skiba’s solicitor informed the State authorities by phone that Skiba had a fear of flying. At the airport, Skiba refused to pass the departure gate. Due to the commotion, the captain of the plane refused to allow Skiba to board.

Afterwards, the Minister applied to the High Court under s 16(5) of the European Arrest Warrant Act 2003 for a second order for transfer, on grounds that the first was not executed because of circumstances beyond the State’s control. S 16(5) provides:

Where a person is brought before the High Court subject to ss. (4)(c) the High Court shall:

(a) if satisfied because of circumstances beyond the control of the State, or the issuing state concerned, the person was not surrendered within the time for surrender under ss. (3)(A), or, as the case may be, will not be so surrendered:
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and

(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution), for a period not exceeding 10 days after the date fixed under sub-paragraph (1) pending the surrender, and
(b) in any other case order that the person be discharged.

 

The High Court granted the Minister’s request. And the Court of Appeal (here) dismissed Skiba’s appeal. The CoA held that the solicitor’s phone call was not sufficient to make it reasonably foreseeable, for the purposes of the 2003 Act, that Skiba would refuse to board the flight.

The State executed Skiba’s surrender to Poland in January 2017. Since then the Court of Justice of the European Union responded to a reference by the High Court in a case with comparable facts. (The CJEU named the case Vilkas, the Supreme Court names the case Vilken). Here, the CJEU held that:

55.  Therefore, so far as concerns the concept of force majeure as provided for in Article 23(3) of the Framework Decision, it is necessary to take account of the general scheme and the purpose of the Framework Decision in order to interpret and apply the constituent elements of force majeure, as derived from the Court’s case-law (see, by analogy, judgment of 18 December 2007, Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraph 26).

56.  In that regard, it is to be recalled that Article 23(3) of the Framework Decision constitutes an exception to the rule laid down in Article 23(2). Accordingly, the concept of force majeure as provided for in Article 23(3) must be interpreted strictly (see, by analogy, judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraphs 24 and 25, and of 18 July 2013, Eurofit, C‑99/12, EU:C:2013:487, paragraph 37).

57.  Furthermore, it is apparent from the wording of Article 23(3) of the Framework Decision that the occurrence of a case of force majeure can justify extending the period for surrendering the requested person only in so far as that case of force majeure means that his surrender within the period laid down is ‘prevented’. The mere fact that his surrender is simply made more difficult cannot therefore justify application of the rule set out in the first sentence of that provision.

 

The Supreme Court determined that, although Skiba had already been surrendered to Poland, any even though he has not challenged the legality of his detention there, the CJEU decision in Vilkas warrants any appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

New Appeal: On An Bord Pleanala’s duty to give reasons for its decisions

In this determination, Connolly v An Bord Pleanala, the Supreme Court granted the Bord leave for a leapfrog appeal from a decision of the High Court. In November 2016, Barrett J quashed a decision of the Bord to grant planning permission for a wind farm in County Clare for not providing sufficient reasons for its decision. Later, the High Court refused to grant the Bord certification to appeal that decision to the Court of Appeal.

 

Background

In 2011, Clare County Council refused McMahon Finn (notice party) permission for the development of a wind farm. McMahon Finn appealed that decision to An Bord Pleanala. After considering the appeal at a number of meetings, and after receiving additional information from the developer, the Bord granted permission for the development.

Kathleen Connelly, a homeowner close to the proposed development applied to the High Court for any order of certiorari quashing the Bord’s decision. She argued that the Bord did not provide adequate reasons for its decision to allow an objective observer to establish whether the decision met the requirements of law.

The High Court, Barrett J (here) reviewed the case law, determining that the applicable authorities are:

– the Court of Justice in Mellor, para. 59, “[I]nterested parties must…have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts”,

– Clarke J. in Christian, para. 78, “In order to assess whether a relevant decision is lawful, a party considering a challenge…must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made”, and

– Finlay Geoghegan J. in Kelly, para.48, “[T]he essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision…”.

21. These obligations appear heightened in importance when one has regard to the tight time constraints that apply to seeking judicial review.

 

Quashing the Bord’s decision, Barrett J held that the Bord had not provided sufficient reasons in compliance with the quoted authorities.

 

Supreme Court

The Bord applied for leave for a leapfrog appeal to the Supreme Court arguing that the standard for leave to the Supreme Court of “general public importance” is lower than the “exceptional public importance” standard necessary for an appeal to the Court of Appeal under s 50 of the Planning and Development Act 2000.

The Bord argued that the High Court decision sets a new, higher threshold of reasoning for decision-makers, contrary to long-settled lines of authority.

Granting leave, the Court stated:

21. It is self-evident from the description of the issues and background circumstances that this is a matter of general public importance which warrants a leapfrog appeal to this Court. The issues in question concern not only this decision of the Board, but many other decisions of the Board. The question, simply put, is as to the degree of particularity and specificity necessary in the Board’s decision.

New Appeal: Can ESB Chief Executive authorise company officers to perform statutory functions?

In this determination, Electricity Supply Board and Anor v Killross Properties Limited, the Supreme Court granted the ESB leave to appeal from the Court of Appeal’s decision in this case. The CoA held that the ESB Board unlawfully delegated its authority under s 9 of the Electricity (Supply) Act 1927 to its Chief Executive.

 

Background

The Electricity (Supply) Act 1927 states:

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

In 2012 the ESB contacted Killross seeking permission to enter its land to perform survey work. In 2013, after extensive communications between the parties, when permission was not forthcoming, an officer authorised by the Chief Executive issued a notice under s 53(3) of the Electricity (Supply) Act 1927 of its intention to enter Killross’s land.

The ESB also issued High Court proceedings seeking an order permitting entry to the land. Killross counterclaimed on grounds, among others, that the Chief Executive did not have legal authority to authorise the officer to issued the notice: that s 9 only permits the Board to authorise officers to issue such notices.

The High Court rejected Killross’s argument on grounds that it was not properly before the court and on its merits.

The Court of Appeal (here) overturned that decision, holding that s 9 did not permit the Board to confer power on the Chief Executive to authorise officers to perform statutory functions. That only the Board can authorise officers to perform statutory functions.

The Supreme Court determined that the case raised any issue of general public interest which any affect how other public bodies perform their functions. The Court certified two questions:

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

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

And in a second determination (here), the Court granted Killross leave for a cross appeal on:

whether, in all the circumstances of the case and having regard to the evidence, the Electricity Supply Board was precluded from exercising its power under s 53 of the Electricity (Supply) Act 1927 as amended as a result of an infrastructure agreement with Eirgrid and having regard to the respective licences granted to both the Electricity Supply Board and Eirgrid by the Commission for Energy Regulation under s 14(1)(f) of the Electricity Regulation Act, 1999 as introduced by Art. 32 of the European Communities (Internal Market in Electricity) Regulation 2000 transposing the internal market in electricity directives.

New Appeal: Do family rights arise for non-EEA students?

In this determination, Balchand & Ors v Minister for Justice and Equality, the Supreme Court granted the Minister leave to appeal on:

Whether, under s 4(7) of the Immigration Act, the Minister was under a duty to consider constitutional family rights, or Article 8 ECHR rights, either generally, or in the circumstances of this case?

 

Background

This case is similar but not identical to Luximon (previous post). Balchand is a native of Mauritius. He entered the State as a student in 2006. His wife joined him in 2008. They had a child born within the State in 2009. In 2011 the Minister adopted a new policy which limited the stay within the State of non-EEA students to seven years.

In 2014 Balchand’s permission to remain in the State expired. The Minister refused his application for long term residency under s 4(7) of the Immigration Act 2004:

A permission under this section may be renewed or varied by the Minister, or any Immigration Officer on his behalf, on application thereafter by a non-national concerned.

Balchand challenged that decision on grounds that the Minister did not consider constitutional family rights or Article 8 ECHR rights in reaching that decision.

The determination outlines the High Court’s rational in dismissing Balchand’s challenge:

11. The High Court judge concluded at para. 21 that the respondents fell into the same “precarious” category, and that, in general, their private and family rights to remain in the State were minimal or non-existent, and did not need to be considered by the Minister at any stage of the process, because they simply did not reach the level of significance required to engage such consideration. He held that repatriation to their country of nationality was not impossible; that the family would not be split up on repatriation; that there was nothing to prevent them enjoying a private and family life in Mauritius; nor was there anything which would prevent them from making an application for permission to return to this State from Mauritius. He held at para. 23 the whole thrust and basis of the student scheme was such that students should honour their part of the bargain and leave the State at the end of the 7 year period. He concluded at para. 24 that there was no obligation on the Ministerto consider whether exceptional circumstances exist in every case. He referred to, and distinguished, a number of U.K. authorities (at paras. 26 to 27), and also referred to decisions of the Court of Human Rights (at paras. 28 to 35) in that regard. (HC judgment).

 

Court of Appeal

The CoA (judgment) overturned the High Court decision holding that the Minister should have considered Balchand’s constitutional and ECHR rights.

The Supreme Court granted the Minister leave to appeal as the case raises an issue of general public importance.

New Appeal: Can placing a letter on file constitute service under the Illegal Immigrants Act 1999?

In this determination, SE v Minister for Justice and Equality, the Supreme Court granted SE leave to appeal from the High Court’s decision that the placing of a letter in SE’s file constituted service for the purposes of s 6(1) of the Illegal Immigrants Act 1999 (as amended by s 10(c) of the Illegal Immigrants (Trafficking) Act 2000).

 

Background

SE arrived in the State in 2015 and immediately applied to ORAC (Office of the Refugees Application Commission) for asylum. ORAC accepted SE’s application and placed him in accommodation for asylum seekers. SE left that accommodation the same day. He did not return or leave a forwarding address. After SE missed any appointment with ORAC, it recommended to the Minister that SE’s application be refused.

As ORAC had no address for SE to send communications to, it placed a letter in his file inviting him to apply for subsidiary protection. ORAC later placed a letter in SE’s file proposing his deportation.

At a later stage, SE applied to the High Court for judicial review of the Minister’s decision to deport him on grounds that the Minister did not serve the letters in compliance with s 6(1) of the Illegal Immigrants Act 1999 (as amended by s 10(c) of the Illegal Immigrants (Trafficking) Act 2000). That provides that notice “shall be addressed to him or her”, and be “served or given” on one of two methods, either (a) “by delivering it to him”, or (b) “by sending it by post” [Det 8].

The High Court dismissed SE’s application. It held that the departure from the statutory requirements on service was justified where SE had not provided an address. The High Court refused to certify an appeal to the Court of Appeal.

 

Supreme Court

Granting leave to appeal, the Court determined that whether the High Court’s interpretation of the law was correct is a matter of general public importance.

New Appeal: Is Minister for Education the employer of all publicly funded teachers?

In this determination, Minister for Education and Skills v The Labour Court & Ors, the Supreme Court granted the Minister leave to appeal on whether “in all the circumstances of this case, the Minister can be said to be an employer of Ms Boyle [notice party] in relation to pay related matters for the purposes of the 2001 Act” [Protection of Employees (Part-time Work) Act 2001].

 

Background

For over twenty years, Ms Boyle was employed as a teacher in a grant-aided preschool for traveller children. For all of that time, the Minister for Education paid a grant equal to 98% of a primary teacher’s salary to the preschool towards Boyle’s salary. Boyle sought to be admitted to the National Teachers Superannuation Scheme claiming that, subject to the Protection of Employees (Part-time Work) Act 2001, she was any employee of the Minister.

The Labour Court determined that the Minister was Boyle’s employer under the 2001 Act. The High Court, O’Malley J, upheld that determination, holding:

School teachers whose salaries are publicly funded must be deemed, for the purposes of the Protection of Employees (Part-time Work) Act, 2001, to be employed by the Minister for Education [143].

The Court of Appeal unanimously upheld the High Court judgment.

 

Supreme Court

The Court determined that the Minister raised an issue of general public importance on whether the trial judge’s interpretation of the 2001 Act is correct.

New Appeal: Must the Minister consider Art 8 ECHR rights in decision to allow non EEA student to remain in the State?

In this determination, Luximon v Minister for Justice & Equality, the Supreme Court granted the Minister leave to appeal the High Court’s and Court of Appeal’s decisions that the Minister must consider constitutional family rights or Article 8 ECHR rights when deciding whether to allow a non-European Economic Area student to remain in the State.

 

Background

Luximon is a native of Mauritius. She entered the State in 2006 as a student. She was later joined by her two daughters. Her permission to remain in the State was renewed a number of times but expired in June 2012. At that time her solicitor applied for permission for her to remain in the State under s 4(7) of the Immigration Act 2004, which provides:

A permission under this section may be renewed or varied by the Minister or any Immigration Officer on his or her behalf on application therefor by a non-national concerned.

The Minister refused that application under the “student immigration rules” which allow a maximum stay of seven years.

The High Court, Barr J, quashed the Minister’s decision on grounds that Luximon’s rights under Article 8 ECHR were “capable of being engaged”; and holding that the Minister breached fair procedure in not publishing the criteria for consideration in an application for a change of immigration status. The Court of Appeal dismissed the Minister’s appeal.

Granting the Minister leave to appeal, the Supreme Court determined that, as there are many similar cases for determination by the Minister, the case raised a point of law of general importance:

Whether, under s 4(7) of the Immigration Act 2004, the Minister was under a duty to consider constitutional family rights or Article 8 ECHR rights, either generally, or in the circumstances of this case, in deciding such application?

Chief Justice welcomes new Attorney General

Courtesy of the Courts Services, the Chief Justice welcomes the new Attorney General:

 

Welcome by the Supreme Court
To the new Attorney General
Séamus Woulfe SC
Chief Justice Denham
21st June, 2017

 

Mr. Attorney General, Colleagues and friends,

On behalf of the Supreme Court it gives me great pleasure to extend to you a warm welcome in your capacity as the newly appointed holder of the constitutional Office of Attorney General.

The Court congratulates you on your recent appointment to an important constitutional Office of the State, with significant duties, which this Court has acknowledged as being one of the “Organs of State”. The Court appreciates the particular importance and difficulty of the role. The Attorney occupies a vital position in the structure of the government.

The Attorney is, of course, the legal adviser to the Government, but is not a member of the Government, it is an independent position. This is never an easy role, but it is particularly demanding in an era where Brexit is likely to throw up very complex legal problems.

While the Constitution recognises the Separation of Powers between the three great organs of State, the Government, the Oireachtas and the Judiciary, it also imposes on those organs, for some of which your role is crucial, a common obligation, specified in Article 40.3, to respect and vindicate the rights of citizens. Indeed, the public interests are committed to the care of the Attorney General.

You occupy an Office which is responsible also for the drafting of all legislation, advising all Government Departments, and for the conduct of civil litigation concerning the State. Thus, the Office which you now hold is one of weighty national importance. In willingly taking up this Office, so as to give public service to the State, you are acting in the best traditions of the Bar.

The Supreme Court recognises the role of the Attorney General as the leader of the Bar. The independent Bar in Ireland is a critical aspect of our democracy. As leader of the Bar you have an important position in maintaining the highest standards in the legal profession, in the interests of the administration of justice.

The Separation of Powers in the State means that each great organ of State has its own specific powers. It is a system of checks and balances and inevitably the Courts make decisions on the actions of other branches of Government. Consequently, it is necessary that there be some distance between the branches.

Also, by the nature of their positions and function, Judges are not expected to engage in public controversy, as other groups may who freely express their views to members of the Legislature and the Executive.

Therefore, the role of the Attorney General is crucial in providing a point of contact, and a method of communication, between the Judiciary and other branches of Government.

Mr. Attorney General, the Court congratulates you on your appointment, and is confident that you have all the qualities that will enable you to meet the difficult challenges, and make the complex decisions, which will inevitably come your way. We extend to you our best wishes.

%d bloggers like this: