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.

DPP v O’Shea: Not necessary to establish mens rea in a prosecution for careless driving which results in a death

Here, DPP v O’Shea, the Supreme Court overturned the Court of Appeal finding that it is necessary to establish mens rea in a prosecution for careless driving which results in a death.

 

Background

On the 9th of January 2013, O’Shea, who was seventy years of age at the time, was driving on a public road in County Kildare. He collided with a JCB which was performing roadworks, pinning Kevin O’Sullivan, who was on traffic control duty, to the JCB, causing his death. O’Shea was not speeding, nor was he intoxicated and his car was fully roadworthy. He claims that there was no pre-warning sign, the sun was low in the sky and he was blinded by strong sunlight.

The DPP charged O’Shea with careless driving causing the death of Kevin O’Sullivan under s 52 of the Road Traffic Act 1961, as substituted by s 4 of the Road Traffic Act (No 2) 2011 (here). At trial, the trial judge instructed the jury that careless driving is a strict liability offence. The jury found O’Shea guilty. The trial judge fined O’Shea €5,000, suspended him from driving for four years and ordered that he re-sit a driver competency test before his licence is returned.

O’Shea appealed his conviction to the Court of Appeal. The CoA (here) overturned O’Shea’s conviction on grounds that dangerous or careless driving are not strict liability offences.

The Supreme Court granted the DPP leave to appeal on the question: “what are the ingredients of the offence created by, and what must be proved in order to sustain a conviction under s 4 of the Road Traffic (No 2) Act 2011?”

 

Supreme Court

O’Malley J wrote the judgment for the five judge panel. Clarke J wrote a concurring opinion.

O’Malley J reviewed the statutory history and case law on driving offences and clarified the elements of the offences of dangerous driving and careless driving. Dangerous driving is “driving that a reasonably prudent driver would, in the circumstances, recognise as causing a direct, immediate and serious risk of harm to the public. There is therefore no requirement to prove that the accused adverted to that risk – the test is objective” [47]. Careless driving is a lesser offence even though it many cause the same result. It is driving with “a lack of care and attention that a reasonably prudent driver would give when driving in a public place, having regard to the circumstances as they actually exist [48]. A careless driver is less blameworthy than a dangerous driver for the same result [49].

MJELR v Equality Tribunal: Supreme Court to make reference to CJEU on Tribunal’s jurisdiction under EU law

Here, Minister for Justice, Equality and Law Reform v The Workplace Relations Commission and Others, the Supreme Court determined to make a reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union. The question relates to whether EU law requires that the Equality Tribunal must have jurisdiction to hear a complaint where the remedy sought is the disapplication of secondary legislation but where the Tribunal does not have jurisdiction to commence such proceedings under national law.

 

Background

In 2005 one of the notice parties was refused entry to train as a member of the Gardai on grounds of age, the upper age limit being 35. He lodged a complaint with the Equality Tribunal under the Employment Equality Acts 1998 to 2004, which implemented Council Directive 2000/78/EC. The Minister sought to have the Tribunal’s jurisdiction to disapply a statutory instrument determined as a preliminary issue. The Tribunal refused and set a date for hearing. The Minister issued judicial review proceedings on that decision in the High Court.

 

High Court

Charleton J (here) upheld the Minister’s complaint. He found that the Tribunal, a body created by statute, did not have jurisdiction to disapply the legislation and therefore lacked jurisdiction to hear the complaint. The correct procedure would have been for the complaint to be transferred to the High Court. The Tribunal member appealed that decision to the Supreme Court.

 

Supreme Court

Clarke J wrote the judgment for the five judge panel. He drew attention to the source of the power of tribunals, Art. 37.1 of the Constitution:

Nothing in this constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this constitution.

 

He stated that “ a significant power to disapply duly enacted legislation could not be described as a limited power in the sense in which that term is used in Art. 37.1” [5.8]. He determined that jurisdiction on employment matters must therefore be divided between the Tribunal and the High Court, but that this was consistent with the EU law principles of equivalence and effectiveness.

However Clarke J determined that there is a question of whether EU law requires that the Tribunal must have jurisdiction to embark on hearings of the nature of the underlying case here. The Court will refer a question to the CJEU. The wording of the question is not recorded in the judgment.

 

A Farewell to The Hon Ms Justice Mary Laffoy

 

Attached is the speech by Chief Justice Denham on the retirement of Supreme Court Justice Mary Laffoy.

Walsh v Jones Lang Lasalle: Economic analysis of duty of care between an auctioneer and a purchaser

Here, Walsh v Jones Lang Lasalle Ltd, the Supreme Court overturned the High Court’s decision, in this case, which blurred the distinction between the duty of care due for negligent acts and for negligent statements: a duty of care for a negligent statement can only arise where the writer or speaker has expressly or by implication assumed some responsibility.

The Court also emphasised the distinction between a disclaimer against a contractual duty and a disclaimer against a duty of care in tort for misstatement: whereas in contract a disclaimer must clearly preclude a pre-existing duty, in tort a disclaimer is evidence that no duty of care was assumed.

Background

Walsh is a property developer. Jones Lang Lasalle (JLL) is any estate agent. JLL acted for a vendor selling a property with development potential in Dublin’s Upper Gardiner Street. JLL’s brochure provided information as to location, title, tenure and scale. It stated that the first floor of the building measured 10,463 sq ft. It also contained the following disclaimer:

Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending puchusers (sic) /lessees should satisfy themselves as to the correctness of the information given.

Walsh purchased the property without having it measured. He secured a tenant for the first floor and then discovered that it only measured 8,573 sq ft. He issued High Court proceedings against JLL for loss of expected rental income. He claimed that JLL had a duty of care to ensure that information in its brochure was accurate, and it had breached that duty.

The High Court, Quirke J, upheld Walsh’s claim and awarded him €350,000 damages against JLL. JLL appealed that decision to the Supreme Court.

Supreme Court

O’Donnell J and Laffoy J wrote concurring opinions allowing JLL’s appeal; O’Malley J concurred with both. McKechnie J dissented. MacMenamin J wrote a dissenting judgment.

Citing Caparo Industries Plc v Dickman [1990] 2 AC 605, MacMenamin J was of the view that not “any” disclaimer will exonerate a defendant, only an “appropriate” disclaimer will. And he did not believe that JLL’s disclaimer was appropriate.

O’Donnell J followed Hedley Byrne v Heller [1964] AC 465 “where the disclaimer is viewed not as an exemption clause, but rather as part of the evidence as to whether a risk had been assumed, and a duty of care arisen” [44]. While a duty of care may arise between an auctioneer and a purchaser on the facts of an individual case, Doran v Delaney [1998] 2 IR 61, no such duty arises generally [34].

Interpreting the disclaimer, O’Donnell J stated:

In my view, the most reasonable interpretation of the disclaimer, and thus the manner in which it would be understood at the time, was that while Jones Lang Lasalle asserted that they took every care in the preparation of the particulars and believed them to be correct, if they did not do so, and/or if the particulars were incorrect, they did not accept responsibility. If the detail of the particulars was important to a prospective purchaser, he or she should verify them independently or, if they did not, they would bear the risk of any inaccuracy [47].

In his concluding paragraph, O’Donnell J provides a Posner style justification of why no duty of care should automatically arise between an auctioneer and a purchaser:

63 Finally, and while not in any sense dispositive, it seems to me this is an outcome which provides clarity and promotes efficiency. This case is, ultimately, about the allocation of risk. At first blush, it might appear reasonable that the agent uttering the statement, should bear the risk of damage flowing from error, but when put in context this is less clear. Everyone involved in this transaction is selling or buying something. The provision of information or advice which can be relied on (and sued on if incorrect) has a value, sometimes substantial. Why should one party, be able to acquire this information backed by the resources of a substantial firm, for nothing? If the agent is unable to limit liability (or be confident that it can do so, which if a disclaimer is to be assessed with the severity of an exemption clause, it cannot be), it must seek to price its services at a sufficient price to cover the risk. Given the potential exposure to damages in property transactions and the costs involved in litigation, this is a substantial cost that must be built into the price either directly, or indirectly through insurance. This means that the cost is spread across the agent, its client, and all other purchasers. But those purchasers may have no interest in accuracy of information as to area, and will not be relying on the brochure in other respects, such as title or tenure. To these participants this would be an additional and unnecessary cost. It is only a special purchaser, who has a particular interest in the square footage for whom the information has value, and there is no reason why that purchaser should be able to avoid the cost of being able to rely on that information, and spread it across other market participants. It is reasonable in my view, that if a purchaser has a particular interest in reliance on the information in the brochure, the starting point should be that he should contract for that, either with the vendor, the vendor’s agent, or his own expert, and otherwise bear the risk of reliance in error, unless the agent has, and for whatever reason, clearly assumed the risk. This is, as I understand, the essential approach to claims of negligent misstatement in cases such as this and is consistent with the outcome of those cases, whether the claims succeed or fail. In my view, it cannot be said from the circumstances of this case (which here resolve themselves on the terms of the brochure), that the agent assumed that responsibility to this plaintiff.

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