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  • merely to receive the invoices referred to in category 8 is not sufficient or at the very least may prove itself not to be sufficient to establish its case against the appellant In order to demonstrate the alleged discrimination it is not sufficient to prove total volumes of minutes trafficked to particular operators as opposed to individual 1800 numbers As pointed out in inter alia the affidavit of Alice Whittaker sworn the 22nd May 2006 total volumes of minutes trafficked to particular operators as opposed to individual 1800 numbers do not provide the plaintiff with the means of relating such increases and decreases to specific call cards that benefited or suffered as a result of the discriminatory imposition of the MAC and the PAC This is because there may be a particular or special reason for an increase which would have no relevance to the alleged discrimination Such relevance in the contention of the respondent can only be established by reference to the individual numbers Furthermore these actions are all about sales of call cards rather than phone call minutes In this connection it is worth quoting paragraph 16 of the same affidavit Consumers access Dome s Telecommunication services by calling the access number on the Dome card then entering their PIN number to verify the level of credit then entering the telephone number they wish to call i e the Dialled Number In this regard I beg to refer to a sample Dome Global Caller Card above which marked with AW5 I have signed my name prior to swearing hereof This sample call card has three different access numbers as described more fully at paragraph 9 depending on the access method used by the customer Based on its own call card sales the plaintiff knows that only a small proportion of customers use the 1800 freephone number from mobile and payphone in order to access the stored telephone credit The loss of 1800 minutes to each of the operators that receive preferential treatment represents only a small proportion of the plaintiff s loss on the sale of its call cards In other words as I understand it the case being made by the appellant is that even though an 1800 freephone number will not normally be accessed from mobile phones or payphones if in fact the charges for such calls are more expensive than those of competitors this is a disincentive to purchasing the card In paragraph 19 of the same affidavit an alternative approach was suggested on behalf of the respondent namely that the appellant would accept as a matter of evidence that every increase in freephone traffic to non Irish carriers in the relevant period relates to call card business At a certain stage the learned trial judge to save time requested letters from each side written to him setting out their respective arguments In the appellant s letter the appellant submitted to the judge that even if the discovery under category 9 might be considered necessary it would still be wholly disproportionate But the letter went on to state that if the judge rejected that submission the appellant would be inclined to adopt the alternative suggestion offered by the respondent as set out above However it is the respondent s case that the appellant attached conditions to the acceptance which were wholly unacceptable What the appellant in this connection said in the letter was the following Accordingly the defendant would be prepared to accept as a matter of evidence for the purposes of the mobile proceedings that during the period running from the 1st January 2001 until 30th October 2001 inclusive all of the increases in freephone traffic the increase being measured compared with the average monthly volume of minutes recorded in the quarter prior to the 1st January 2001 from mobile handsets in Ireland to 1800 numbers terminating outside the State which increases are fully recorded in the documentation already provided to the plaintiff in respect of category 8 may be attributable to use by call card customers of their cards The appellant then adopted a rather different position in relation to the payphone proceedings i e the action to which appeal 375 relates What the appellant said in the letter in that respect was as follows As regards the payphone proceedings the matter is more problematic The defendant does not deny as the plaintiff in effect in footnote 2 to its letter observes that the figures for payphone originating international freephone traffic are included within the figures for fixed line originating international freephone traffic in the document created by the defendant setting out details of the outgoing international freephone traffic which it trafficked in the period August 1999 to April 2005 This document to which the defendant refers in the said footnote was produced by the defendant to assist the plaintiff in analysing the said international freephone traffic Contrary to the allegations made by the plaintiff in its letter of the 8th inst the defendant is satisfied that the information contained in this document is both complete and accurate For the reasons set out in paragraph 10 of the affidavit of John Hall sworn on the 22nd March 2002 on behalf of the defendant the latter was unable to distinguish payphone originating international freephone traffic from fixed line original international freephone traffic prior to 2002 Consequently for the purposes of the payphone proceedings the defendant would be prepared to accept as a matter of evidence that for the period running from the 1st September 2001 which the plaintiff admits in the affidavit sworn by Dara O Mahony on its behalf on the 8th April 2002 that it began applying the PAC to its call cards until the 7th June 2002 when it became possible to identify payphone originating international freephone calls that up to 50 per cent of the increase in the monthly volume of fixed line originating international freephone traffic above that recorded in the previous quarter to wit June to August 2001 may be attributable to use by call card customers of their cards As Ms Whittaker makes clear in her same affidavit it was the view of the respondent that by limiting and re defining the concession the defendant renders it of no assistance to the plaintiff in advancing its cause This is a suitable juncture in which to make the observation that subject to one qualification to which I will refer at no stage in the affidavits or in the letter to the judge or in the submissions written or oral does the appellant make any worthwhile concession to the effect that a trial judge would be entitled to draw inferences of discrimination from the category 8 discovery In fairness of course the appellant has made one significant concession in respect of particular periods to which I will refer in more detail later in the judgment and that is the qualification to which I have referred It is a concession that in respect of different particular periods relating respectively to MAC and PAC distortion in card sales can be attributed to non imposition of the transit charges though the appellant will claim that there was objective justification for it The contention of the appellant is that as of the terminal date in respect of each period the charge was imposed However it is the contention of the respondent that the decision did not correspond in date with the implementation of the decision and that for the purposes of the respondent s claim the alleged unlawful discrimination must be taken to have continued long after the terminal date Detailed reasons as to why the conditions attached by the appellant to the acceptance of the respondent s alternative offer were unacceptable are set out in the paragraphs 20 and 21 of the same affidavit At this stage I turn to the grounds of appeal of which there are three 1 That the power of the High Court to order discovery of documents does not extend to directing a party to create documents for the purposes of the action 2 That the power of the High Court to order discovery of documents does not extend to directing a party to create documents that do not exist at the time that the order for discovery is made 3 That the creation of the documents directed by the High Court imposes a disproportionate burden on the appellant where an order to comply with that order it would be required a to extract in excess of 20 billion call data records from the tapes on which they are currently stored b to record the said records onto a parallel data base c to collate and analyse the records on the parallel data base in order to correlate them with the 1800 freephone numbers the subject matter of the order for discovery d to create therefrom a document containing a report of the total monthly volume of freephone minutes traffic per month from the 1st July 2000 to the 7th April 2005 in respect of each 1800 number by reference to access method by the appellant to international carriers limited for the time being to those identified and set forth in the Schedule where the volume of minutes trafficked to that international carrier in any given month exceeded 5 000 minutes For my own part I have no difficulty with the first two grounds of appeal I am satisfied that they are ill founded It would seem to me that I can usefully treat of the first two grounds of appeal together My starting point would be that I would reject any idea that the right to discovery of documents should be exclusively based on an interpretation literal or otherwise of the relevant rule of court According to Halsbury s Laws of England 4th ed Vol 13 para 1 footnote 3 the discovery of documents was originally an equitable device employed in the Court of Chancery for obtaining the disclosure and inspection of relevant documents as well as the disclosure and admissions of relevant facts It had a more limited history in the common law courts but from and after the Judicature Act the chancery practice applied in all courts though of course ever since the Judicature Act there has been a rule of court regulating discovery In modern times courts are not necessarily hidebound by interpretation of a particular rule of court More general concepts of ensuring fair procedures and efficient case management are frequently overriding considerations The Rules of Court are important and adherence to them is important but if an obvious problem of fair procedures or efficient case management arises in proceedings the court if there is no rule in existence precisely covering the situation has an inherent power to fashion its own procedure and even if there was a rule applicable the court is not necessarily hidebound by it It is common knowledge that a vast amount of stored information in the business world which formerly would have been in a documentary form in the traditional sense is now computerised As a matter of fairness and common sense the courts must adapt themselves to this situation and fashion appropriate analogous orders of discovery In order to achieve a reasonable parity with traditional documentary discovery it may well be necessary to direct a party to create documents within the meaning of the notice of appeal It may indeed also be necessary to direct a party to create documents within the meaning of the notice of appeal even if such documents do not exist at the time the order is made I am deliberately using quotation marks because I do not intend to adjudicate on the quasi metaphysical argument of Mr Paul Anthony McDermott counsel for the respondent that the documents do in fact exist At any rate that matter can probably be argued both ways but I would be firmly of opinion that an order of discovery can be made which involves the creation of documents which do not exist made in the kind of context in which it is sought in this case Otherwise potential litigants could operate their business computers in such a way that they would be able to evade any worthwhile discovery In expressing the above views I accept that superficially I am perhaps going a step further than the English authorities have done in so far as their rule of court can apparently be interpreted to cover computer discovery I have no hesitation however in making that extension Subject to the qualification which I have just mentioned I accept the broad thrust of the English Australian American and other authorities in common law jurisdictions relied on by the respondent But I do not intend to review them in detail as it seems to me it is sufficient to express approval of the judgment of Vinelott J in Derby v Weldon No 9 1991 1 W L R 652 In that case it was held by the English High Court that the data base of a computer in so far as it contained information capable of being retrieved and converted into readable form and whether stored in the computer itself or recorded in backup files was a document within the meaning of the relevant English rule of court and that there was therefore power to order discovery of what was in that database with the proviso that the discretion to order production for inspection and copying would not be exercised so as to give an unrestrictive access to another party s computer and such inspection would be ordered only to the extent that the parties seeking it could satisfy the court that it was necessary for disposing fairly of the cause or matter or for saving costs in the light of any evidence as to what information could be made available how far inspection or copying of the database was necessary or whether the provision of printouts would suffice and what safeguards were required to avoid damage to the database and minimise interference with its everyday use Essentially Vinelott J was applying by analogy a judgment of Walton J in Grant v South Western and County Properties Limited 1975 Ch 185 where the question arose of whether a tape recording of a telephone conversation was a document Two judges in that case took opposite views but Walton J considered it an absurdity that if two parties to litigation recorded a conversation one on a tape recorder and one in shorthand the one would and the other would not be discoverable and he said the following The mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required Nor again if he kept them by means of microfilm which could not be read without the aid of a projector Vinelott J agreed with Walton J and applied the same principle to computers It is important to observe that the judgment in Derby and Co Limited v Weldon has already been cited with approval by this court in the judgment of Denham J in Keane v An Bord Pleanála 1997 1 I R 184 In the respondent s written submissions there is included the following apposite paragraph The appellant s submissions accept that a database is a document However they seem to be suggesting that it is only what is at the forefront of the database on the date on which discovery is ordered that is discoverable Thus if you delete one version of a letter and type up a fresh one the earlier version is not discoverable because to download it from the hard drive of the computer would be to create a new document This does not reflect the reality of how computers operate Once a particular calculation has been done on a computer then the only issue is one of retrieval and this is not the same as creating a new document It is submitted that a confusion between these two concepts lies at the heart of the appellant s submissions As I have already indicated I do not intend to rest my judgment on whether new documents are created or not as it may lead to unnecessary confusion Indeed the paragraph which I have just cited from the respondent s submissions needs considerable qualification If for instance in the pre computer days one version of a letter was replaced by a fresh version the earlier version would probably have been torn up and destroyed Strictly speaking it would have been necessary under an order for discovery to have included the torn up letter in the affidavit of discovery as a document which had been in the possession of the discovering parties but there would obviously have been no obligation to produce it It would seem to me that the court s discretion in ordering discovery of matters buried in a computer should be directed towards confining the information obtained as far as possible to what should reasonably have been available under traditional documentary storage It is clear also from the authorities that the discretion must take into account the other factors mentioned in Derby I would not therefore allow the appeal on either of the first two grounds I now turn to consider the third ground which is altogether more difficult The key question that arises under this ground of appeal is whether in all the circumstances the discovery sought is oppressive to an extent that it is unreasonable to order it Terminology is important in this context and for the purposes of this judgment at least I intend to distinguish between the concept of discovery being necessary and discovery being proportionate In some of the case law and at times in the oral and written submissions the issue of whether

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  • order in relation to Category 9 in the event that the invoices settlements did not contain the requisite information on volumes of minutes per 1800 number The plaintiff does not believe that the court intended that its decision would necessitate a full re hearing but rather was a simple matter of avoiding unnecessarily burdening the defendant with production of duplicate sets of documents in Categories 8 and 9 because the defendant had made certain arguments based on its perception of the onerous nature of the discovery requested The defendant has adopted an inconsistent and contradictory approach to dealing with the plaintiff s reasonable inquiries in relation to the content of invoices in Category 8 and appears to have obstructed the plaintiff s attempts to have the court deal with the information required under Category 9 at an early stage as illustrated by inter partes correspondence and the defendant s submissions to the court on 21 March and 2 May 2006 In particular the defendant wrote to the plaintiff on 23 February 2006 expressly refusing the plaintiff the information sought in Category 9 The defendant s position now appears to be that the court made no order in relation to Category 9 and that the defendant is only required to provide the information in Category 8 insofar as it relates to the volume of minutes trafficked per month The defendant appears to base its position entirely on the words used by the court in summarising that latter part of Category 9 being the volume of minutes trafficked per month in respect of each 1800 number issued by reference to access method The plaintiff does not believe that the court intended to curtail Category 9 as now alleged by the defendant to merely a statement of volumes of minutes per month as the court gave no indication of any reasoning for such a curtailment nor was such a curtailment argued by either party before the court The defendant appears to be taking a further step now by appearing to suggest that the parties have not already engaged in arguments before the court in relation to Category 9 On 2 May 2006 counsel for the defendant s argued that these matters required to be put on affidavit once more and then be argued before the court again The defendant does not appear to accept that the discovery application for Category 9 has been heard and dealt with by the court and that the court had ruled that in principle the plaintiff is entitled to discovery of the volumes of minutes per 1800 number We are concerned that the defendant may be trying to postpone the time when this information must be provided and we believe that this is because the defendant knows that it will greatly assist the plaintiff s case As set out above a certain amount of information has been given to the plaintiff through other categories of discovery and the plaintiff is satisfied that the information required in Category 9 will show a dramatic increase in traffic flowing to particular 1800 numbers terminating outside Ireland following the discriminatory imposition of both the PAC and the MAC as demonstrated by the discovered documents included at Appendix 2 In order to prove that these increases are attributable to its call card competitors the plaintiff needs to know the identity of the 1800 number s which received this traffic The only alternative to granting discovery is for the defendant to accept as a matter of evidence that every increase in freephone traffic to non Irish carriers in that period relates to call card business Emphasis added by me The plaintiff wishes to bring it to the court s attention that the delays by the defendant in making discovery and in particular the provision of erroneously redacted material even though subsequently corrected and the provision of very poor copies had involved the plaintiff in costs and time that it should not have had to incur and of which the plaintiff has made the defendant aware The plaintiff has incurred the costs of two days of hearing on discovery of the outstanding categories including Category 9 on which the plaintiff believed that it had succeeded in its discovery application The plaintiff is understandably reluctant to incur the costs of another hearing in particular given that it does not have the resources of the defendant and that this litigation is already imposing such a high level of cost on the plaintiff The defendant suggested on 2 May that it would be easier to make discovery if the request was limited to certain operators In order to facilitate the court and the defendant the plaintiff is prepared to prioritise its request in relation to particular operators with liberty for the plaintiff to re apply in respect of the operators foregone should further analysis of the discovery indicate that one or more of those foregone operators did support competitors of the plaintiff The defendant in turn wrote its own letter to McKechnie J on 12th May 2006 The relevant portion of that reply reads as follows I refer to the letter of the 8th inst and selected accompanying documentation contained in appendices 1 to 6 thereto addressed to you by the solicitors acting for the plaintiff in the above proceedings further to your directions at the most recent hearing of the 2nd inst concerning the plaintiff s motions for discovery in the said proceedings On behalf of the defendant we would in accordance with your directions judge respectfully reply as follows to the said letter In the interest of brevity it is our intention to focus on what would appear to be the main reasons advanced by the plaintiff for seeking discovery under Category 9 in both the within proceedings However it is necessary straightaway to contradict the account advanced by the plaintiff of the argument before you judge on 1st November 2005 regarding the said Category 9 and its interpretation of your judgment of 2nd November 2005 in respect thereof In the defendant s respectful submission it emerges clearly from the quotation from your judgment cited on page 3 of the plaintiff s letter that you took the view that the documentation that would be necessary for the plaintiff to advance its claims of discriminatory treatment in these proceedings would be that which would permit it to ascertain the volume of minutes trafficked per month In this respect you accepted our counsel s submission that the documents to be provided under Category No 8 should include this information Notwithstanding the assertions to the contrary made in the plaintiff s letter this submission was correct and the international settlements and voluminous invoices to national telecommunications operators discovered in the third and fourth affidavits of discovery in the within proceedings of John McKeon sworn on the 20th March 2006 and on the 27th April 2006 and copies of all of which have been furnished to the plaintiff are complete and accurate and contain all the said information The case that was advanced by the plaintiff at the said hearing on 1st November and that is currently being renewed by it is that such information is not sufficient Thus the essential difference between the parties remains whether or not it is necessary for the proper disposal of the within proceedings for the plaintiff to have information on the volume of freephone minutes trafficked per month in respect of each 1800 number in addition to information on the total volume of such traffic It is and has been the defendant s consistent position in its correspondence with the plaintiff since your aforesaid judgment of 2nd November 2005 some but not all of which correspondence is produced by the plaintiff in Appendix 4 to this letter that you have as of yet judge made no decision or finding as to whether the additional information sought by the plaintiff essentially electronic call data records is discoverable and if so whether its discovery would be necessary for the proper disposal of these proceedings It has been and remains the defendant s position that the very extensive documentation provided to the plaintiff in respect of discovery under Category 8 which contains information regarding the total volume of freephone 1800 minutes trafficked from mobile payphone and fixed line phones within the State both to national i e domestic licensed telecommunications operators and international i e non national operators during the 66 month period running from August 1999 until April 2005 contains all the information that is reasonably necessary for the plaintiff to seek to establish that it suffered any damage as a result of the time gap between the imposition by the defendant on national and international operators respectively of the mobile access charge hereinafter MAC and the payphone access charge hereinafter PAC The plaintiff has been furnished by the defendant at the latter s expense with copies of every invoice issued to national operators during the period from August 1999 until April 2005 all of which invoices were discovered in the fourth affidavit of discovery of John McKeon sworn on the 27th April 2006 The said invoices set out clearly the total volume of freephone mobile payphone and fixed line traffic to each national operator in that period The information therein contained permits the plaintiff to determine whether the imposition of the MAC on 15th October 2000 and the PAC on 1st April 2000 on national operators was effected in a discriminatory manner as alleged by the plaintiff or had any appreciable effect on the volume or pattern of freephone traffic to such operators as is effectively alleged by the plaintiff by way of its claim of favouritism by the defendant of international operators The defendant notes that no assertion has been made by the plaintiff in its letter of 8th May to the effect that the said invoices will not suffice to enable the plaintiff to advance its claims in respect of the effect on the imposition of these charges on national operators It is the defendant s respectful submission that all the requisite information is contained in the invoices i e they will permit the plaintiff on proper perusal thereof to ascertain whether the imposition of the MAC and PAC on national operators was applied in a discriminatory manner as compared to international operators or affected adversely or otherwise the volume of freephone traffic to them Nothing further would be added by the disclosure of information regarding traffic per number i e call data records hereinafter CDRs Contrary to the various assertions to the contrary made by the plaintiff in its letter the defendant s position in respect of Category 9 has been at all times consistent The defendant has not denied that the discrepancy between the time when the defendant was able for technical regulatory and commercial contractual reasons to impose MAC and PAC charges on national and international operators may have given rise to an arbitrage opportunity for call card operators including of course the plaintiff to eschew paying the said charges by seeking to obtain freephone services from international operators i e by obtaining 1800 freephone numbers terminating abroad for use as the access 1800 number on the call cards marketed by them in the State This arbitrage opportunity arose at most during the period when the MAC and PAC were applied to national operators alone i e in the period running as regards MAC from 15th October 2000 until 1st October 2001 and as regards PAC from 1st April 2000 until 1st December 2002 It should be noted that the international operators were apprised from July 2001 that the MAC was going to be applied to them The plaintiff will be aware from documentation already discovered particularly in respect of Category 3 in John McKeon s first affidavit of discovery sworn on 3rd November 2005 in the mobile proceedings that such operators were given the choice of agreeing to permit the defendant to block calls from mobile handsets in Ireland to their out of state terminating freephone 1800 numbers or of paying the MAC Many opted to have access from mobile handsets blocked while those who did not were subjected to the MAC with effect from 1st October 2001 i e following the amendment of their bi lateral agreements with the defendant As regards the PAC the defendant has not denied that it took it longer to realise that there was an arbitrage opportunity from which some telecommunications operators were benefiting at its expense Regulatory approval was sought for the blocking of access to internationally terminating 1800 freephone numbers The international operators were then advised on the 18th April 2002 that PAC would be applied to calls from the Defendant s payphones to internationally terminating freephone 1800 numbers unless the operators agreed to allow the Defendant to block access to such numbers from its payphones Following the amendment of the relevant bilaterals the PAC was introduced on 1st December 2002 and applied retroactivity to 7th June 2002 Returning to the key periods i e as regards MAC from 15th October 2000 until 1st October 2001 and as regards PAC from 1st April 2000 until 1st December 2002 the documents invoices and international settlements already discovered under Category 8 in both sets of within proceedings permit the plaintiff to ascertain total traffic both national and international to 1800 freephone numbers by access method mobiles payphones or fixed line The plaintiff can as a result calculate the total increase in traffic to international carriers that occurred during the above key periods It can therefore ascertain the maximum amount of minutes created by the arbitrage opportunity presented by the availability of freephone numbers terminating outside the State to which in those periods no MAC or PAC was applied and to which calls could be made from mobile handsets or payphones in the State an opportunity of which the plaintiff alleges some of its competitors choose to avail Dara O Mahony in paragraph 31 of his affidavit sworn on 6th March 2002 in the payphone proceedings acknowledges that the plaintiff itself availed at least as regard World Com of such an opportunity The total market potentially lost to its competitors is therefore already known to the plaintiff and the defendant fails to understand why the plaintiff requires more particular information regarding traffic to particular international freephone numbers when information regarding the traffic to those numbers and all other such numbers is a mere subset of the overall information already contained in the documentation made available to it under Category 8 Nothing further would therefore be added by the disclosure of the CDRs sought by the plaintiff The discovery process to date involving since last November the swearing of four affidavits and the production of literally thousands of documents has placed an enormous burden on the defendant and involved the deployment of very considerable resources As was outlined to you judge by our counsel on the second inst if you were to order our client to make discovery in terms of Category 9 even if it is limited to schedules lists or database setting out the volume of minutes trafficked per month in respect of each 1800 number issued by reference to access method a further truly enormous burden would be placed on the defendant First of all as our counsel indicated to you on the 2nd inst there are in effect no schedules lists or database setting out the requested information Rather our client has an extremely complex computerised billing system that electronically generates a CDR for every call made 24 hours a day seven days a week across its entire network Second if CDRs for all traffic to freephone numbers were to be produced for the combined period covered by Category 8 in both the mobile and payphone proceedings to wit August 1999 until April 2005 as has been done by the defendant in respect of the invoices and international settlements discovered under Category 8 every CDR produced by the defendant for each call made during the entire 66 month period would have to be extracted To do this our client s technical personnel have indicated it would be necessary to restore each month in turn to a shadow database This would take about two days duration by database Each month would contain approximately 450 million records and would occupy about 100 GB of disc space hence only one month at a time could be recreated In order to restore the entire 66 months in question this would require an estimated minimum of 132 days following which data analysis would have to be run on the extracted records in order to identify the freephone traffic and separate it from non freephone traffic as only the former would be discoverable and the defendant would plainly be in breach of its obligation of confidentiality to its clients if it were to provide all the estimated 29 700 million CDRs in question to the plaintiff Our technical personnel estimate that it would take one person working fulltime for six to eight months in order to complete this exercise The plaintiff asserts page 3 of its letter by reference to some sample documents discovered by the defendant in respect of Category 2 in the mobile proceedings and in respect of Category 3 in the payphone proceedings that the defendant is capable of producing data per 1800 number We are advised by our technical personnel that if a particular number is specified and if the period in respect of which information is required is limited to a single billing period i e a particular month the IT process involved in requesting of the existing billing system the CDRs and creating a hard copy of the information contained therein is greatly simplified This process is further simplified if information regarding a particular 1800 number or a series of numbers is required in advance as occurred in the example sited by the plaintiff in its letter page 3 However in the present case even if the plaintiff were as it hints at on page 5 of its letter to specify those numbers in respect of which it particularly wished to obtain CDR copies as its requests would be likely to straddle several months the task involved for the defendant in creating the records sought would remain extremely burdensome especially if as seems likely the plaintiff would reserve the right to come back and continue to request further and further CDR copies It is for this reason that the defendant submits that even if the discovery sought under Category 9 might be viewed contrary to the submissions made above as being necessary for assisting the plaintiff to make its case in the within proceedings it would in the defendant s respectful submission be wholly disproportionate to order that such discovery be made Nevertheless if you reject this submission Judge the defendant would be inclined to take up the offer made by the plaintiff on page 5 of its letter where it states The only alternative to granting discovery is for the defendant to accept as a matter of evidence that every increase in free phone traffic to non Irish carriers in that period relates to call card business Accordingly the defendant would be prepared to accept as a matter of evidence for the purposes of the mobile proceedings that during the period running from 1st January 2001 until 30th October 2001 inclusive all of the increases in freephone traffic the increase being measured compared with the average monthly volume of minutes recorded in the quarter prior to the 1st January 2001 from mobile handsets in Ireland to 1800 numbers terminating outside the State which increases are fully recorded in the documentation already provided to the plaintiff in respect of Category 8 may be attributable to use by call card customers of their cards emphasis added by me As regards the payphone proceedings the matter is more problematic The defendant does not deny as the plaintiff in effect in footnote 2 to its letter observes that the figures for payphone originating international freephone traffic are included within the figures for fixed line originating international freephone traffic in the document created by the defendant setting out details of the outgoing international freephone traffic which it trafficked in the period August 1999 to April 2005 This document to which the defendant refers in the said footnote was produced by the defendant to assist the plaintiff in analysing the said international freephone traffic Contrary to the allegations made by the plaintiff in its letter of 8th inst the defendant is satisfied that the information contained in this document is both complete and accurate For the reasons set out in paragraph 10 of the affidavit of John Hall sworn on the 22nd March 2002 on behalf of the defendant the latter was unable to distinguish payphone originating international freephone traffic from fixed line originating international freephone traffic prior to June 2002 consequently for the purposes of the payphone proceedings the defendant would be prepared to accept as a matter of evidence that for the period running from 1st September 2001 when the plaintiff admits in the affidavit sworn by Dara O Mahony on its behalf on 8th April 2002 that it began applying the PAC to its call cards until 7th June 2002 when it became possible to identify pay phone originating international freephone calls that up to 50 of the increase in the monthly volume of fixed line originating international freephone traffic above that recorded in the previous quarter to wit June to August 2001 may be attributable to use by call card customers of their cards emphasis added by me In the light of the above the defendant would respectfully conclude that the discovery sought by the plaintiff under Category 9 in both of the within proceedings is unnecessary I have set out this correspondence in full because it gives a clear picture of the parameters of the dispute between the parties Further the defendant s letter also clarifies the size of the task which category 9 disclosure would place on the defendant I have also emphasised those portions of the defendant s letter which contain an extremely important concession specifically offered by the defendant in response to an indication contained in the plaintiff s letter that such an admission or concession would address their major concerns about disclosure in these proceedings It would be wrong to not also record that the plaintiff in turn made a generous concession that it would not press for discovery in respect of the records of national operators convinced as it was that it could adduce any evidence it required in support of its various claims by calling witnesses from competing firms in Ireland The plaintiff further agreed at a later stage to limit the number of international operators in respect of whom discovery was sought to the eleven main international operators whose names appear in the schedule attached to the order ultimately made by McKechnie J on the 30th August 2006 Having regard to the concessions made by the defendant in relation to the arbitrage period mentioned above the defendant argued that discovery under Category 9 was not necessary to enable the plaintiff make out its case in the proceedings and was furthermore a wholly disproportionate form of relief having regard to both the concessions on the one hand and the costly and burdensome nature of the discovery under Category 9 on the other The competition judge had evidence that call data records CDRs existed within the defendant s computer system but that the same could not now be retrieved without exhuming vast numbers of CDRs from the system While the defendant did operate a billing system for operators and customers by reference to the CDRs these bills were generated electronically on a temporary basis only when the charges arose and no longer exist There was evidence that the retrieval of such information from the system would impose an enormous burden on the defendant For each month between August 1999 April 2005 there would be approximately 450 million records which would occupy about 100 GB of disk space Only one month at a time could be recreated In order to restore the entire 66 months in question this would require an estimated minimum of 132 days following which data analysis would have to be run on the extracted records in order to identify the freephone traffic and separate it from non freephone traffic as only the former would be discoverable and the defendant would in addition possibly breach its obligations of confidentiality to its clients if it were to provide all the estimated CDRs in question In the course of his ruling on the application for Category 9 discovery McKechnie J noted that in November 2005 he had dealt with Category 9 on the basis that he should not allow that category of documents because he had been informed by the defendant that the information which the plaintiff sought would be obtainable from Category 8 He accepted however that the information furnished under Category 8 did not meet the plaintiff s requirements because it did not enable the plaintiff to trace the actual loss of sales of call cards and that it was necessary for that purpose to trace the traffic by reference to access method to individual 1800 numbers He noted that the call data record comprises the duration of the call the identity number of the telephone from which the call is made the identity of the number to which it makes a connection By use of this information Eircom would be able to attribute the calls in question to different call categories and ultimately to the licensed operators to whom the calls are trafficked He noted that in essence Dome was seeking to have Eircom use the call data records in such a way as to extract from those records information which when analysed would result in the creation of detail from which the plaintiff could measure any alleged loss or damage suffered With regard to the concessions made by Eircom the learned trial judge did not accept that they provided a sufficient means of reflecting the increases or decreases to specific call cards which may have benefited or may have suffered as a result of the alleged discrimination levelled against Eircom in respect of both payphone and mobile charges He further noted that the application for discovery had been opposed on three grounds The first of one of utility the second was one of proportionality and the third was that it imposed an obligation to create documents which otherwise a party subject to an order for discovery would not be required to do At p 15 of his ruling McKechnie J stated In addition I have looked at the pleadings the scope of the issues raised therein the particulars insofar as these exist and the replies thereto and the concessions which have been offered and made on behalf of Eircom Having considered all of these matters I remain of the view that the documents sought in Category number 9 are relevant and are necessary for the purposes of this action He then considered the submissions by Eircom to the effect that the imposition of such an obligation would in effect require them to create a document and then proceeded to consider precisely what constituted a document holding that the use of existing raw data in the manner sought was still within the required parameters of Order 31 rule 12 of the Rules of the Superior Courts and did not go beyond same To the extent that any order did go beyond same then in the view of the learned trial judge such an extension was so merited He also considered the question of proportionality In this regard he frankly conceded it was quite difficult to make a definitive ruling on that particular point because one would not fully know whether the utility benefit of the information gleaned would be such as to justify the effort involved However having decided the issues of relevance and necessity in favour of the plaintiff he came to the conclusion that any resulting requirement for discovery under Category 9 could not be regarded as disproportionate In so directing he readily accepted that the order placed a burden and perhaps a heavy burden on Eircom Having so concluded McKechnie J directed that the defendant do within six months from the date of his order make discovery on oath of the following documents The volume of minutes trafficked per month from 31st day of August 1999 to 23rd day of December 2003 in respect of each 1800 number by reference to access method by the defendant to international carriers and or other entities to be limited for the time being to those identified and set forth in the schedule hereto where the volume of minutes trafficked to that international carrier and or other entity in any given month exceeded 5 000 minutes the documents within the power of the defendant to be created from the defendant s raw data and databases and using the defendant s own database The learned trial judge further directed that the defendant do pay the plaintiff the costs of the motion and order when taxed and ascertained Attached to the order as already noted was schedule 1 which listed a number of international operators who had been identified as the principle operators of relevance to the issues in the proceedings In bringing this appeal the defendant argues that the learned High Court judge erred in law or in fact or on a mixed question of law and fact in holding 1 That the power of the High Court to order discovery of documents extends to directing a party to create documents for the purpose of the within proceedings 2 That the power of the High Court to order discovery of documents extends to directing a party to create documents that do not exist at the time the said order is made 3 That the creation of the documents directed by the High Court does not impose a disproportionate burden on the defendant appellant where in order to comply with the said order it would be required To extract in excess of 20 billion call data records from the tapes on which they are currently stored To record the said records onto a parallel database To collate and analyse the records on the parallel database in order to collate them with the 1800 freephone numbers the subject matter of the said order for discovery To create therefrom a document containing a report of the total monthly volume of freephone minutes trafficked per month from 31st day of August 1999 to 23rd day of December 2003 in respect of each 1800 number by reference to access method by the defendant to international carriers limited for the time being to those identified and set forth in the schedule hereto where the volume of minutes trafficked to that international carrier in any given month exceeded 5 000 minutes notwithstanding that the defendant appellant has made discovery on oath of all invoices raised and issued by the defendant appellant to licensed operators international carriers including Eircom UK where the monthly volume of minutes trafficked to each operator exceeded 5 000 minutes thereby providing the plaintiff respondent with details of any significant traffic movements during the relevant period and that it concedes for this purpose alone that 100 percent of the monthly increase in such mobile originating traffic between 1st September 2001 and 31st September 2002 compared with the average monthly volume of minutes trafficked in the quarter part to 1st September 2001 is attributable to an increase in such freephone traffic to card based products or services SUBMISSIONS OF THE PARTIES Mr Anthony Collins senior counsel on behalf of the defendant contended that the Rules of the Superior Courts do not confer any power upon the High Court to require a party to bring documents into existence for the purpose of the proceedings The terminology of Order 31 rule 12 of the Rules of the Superior Courts was clear and the unheralded extension of the scope of the rule contended for by the plaintiff could not be made without breaching the principles of legal certainty and fair procedures This was all the more so where the Superior Courts Rules Committee overhauled the rules governing discovery in the relatively recent past without seeing fit to change this aspect of the rules What was being sought in the instant case was not limited to the extraction of database backup disks and discovery of relevant information contained thereon but the compilation analysis and presentation of information in a form which it is not and never was available On the issue of proportionality it was accepted that the material was relevant However even though Dome had limited its request to the eleven principle international operators to which Eircom trafficked international freephone traffic during the relevant period the defendant for the purpose of complying with any order for discovery under Category 9 would require the purchase of additional computer hardware costing in the region of 150 000 the creation and or purchase of bespoke software to carry out the analysis required and the dedication of at least three to four specialised information technology technicians from Eircom s IT department to work at the project over a period of at least six months It was further submitted that the fons et origo of the concession made by the defendant in the course of discovery was the assertion by Ms Whittaker in her letter of 8th May 2006 to the High Court regarding the alleged huge growth in minutes when the discrimination by the defendant occurred which grew to a high point and then dropped away and the further statement that the only alternative to granting discovery is for the defendant to accept as a matter of evidence that every increase in freephone traffic to non Irish carriers in that period relates to call card business By way of response to this assertion Eircom was prepared to concede that during the period 1st January 2001 to 1st October 2001 the entire increase in mobile originating traffic to such carriers could be attributed to use by call card customers of their cards While it was submitted on behalf of Dome that the failure to apply the MAC continued to be felt after 1st October 2001 Mr Collins submitted that any slippage was relatively minor after the main arbitrage period had been closed off as a result of the extension of MAC to international telecommunications operators with effect from October 2001 since when the majority of numbers carrying most of the traffic were either closed to access from mobiles or were subjected to the MAC Mr Collins submitted that as any differential charging dropped away almost completely at the conclusion of the arbitrage period and having regard also to the time effort and expense required to obtain the discovery sought it was unnecessary and disproportionate to order discovery under Category 9 having regard to the concessions offered by Eircom Finally Mr Collins submitted that in lieu of discovery of the information sought by Dome his clients were willing to make the data in question once retrieved from its backup disks available for inspection by Dome Mr Collins submitted that the learned High Court judge had not given any or any adequate consideration to the alternative of inspection of the data as retrieved and as offered by the defendant In reply Mr Paul McDermott B L argued that the learned trial judge had correctly concluded that the discovery sought was relevant necessary and proportionate Given that there was no dispute about the relevance of the material Mr McDermott submitted that the information obtained from the appellant in documents discovered under Category 8 was of limited value not only because

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  • Anne Courtney the vendor Mr Michael Earley the relevant bank manager Mr Colm Gavin solicitor for the purchaser When I describe what happened on the 11th July 2005 it will emerge that Mr David Fowler a partner of Mr Hickey was a key figure Yet although it appears from the transcript that he was present in court he was not called as a witness I turn now to the key evidence of Mr Gavin Mr Gavin explained that he received the instructions from his client the purchaser relating to the offer conveyed to her by Mr Fitzpatrick in early July 2005 He had been out of the office until Thursday 7th July and therefore received them on that date Early the following morning he contacted the office of the vendor s solicitors which was a Dublin firm He was told that Mr Hickey was on holidays and he then asked for Mr Fowler but he was told that Mr Fowler would not be there that day He told the telephonist that he would ring back on the Monday but that the matter was extremely urgent When asked what did he understand was going to happen on Monday 11th July he said that he understood that the sale was to be completed These were the instructions given to him by the purchaser He interpreted his instructions as meaning that the sale was to be completed in accordance with the terms of the original contract That of course was a correct interpretation if Mr Fitzpatrick s evidence was to be accepted and there was no reason to dispute it When asked about the side problems such as access on to the lands etc he answered as follows Well my understanding with regard to it the site seemed to be fraught with problems as far as I could see The original contract was a little loose with regard to how the access and things were to be But whatever I was being offered on the day on Monday I would have to accept That was as far as I was and that is what I informed my client Whatever we were getting we had to take that was it He confirmed that those were in fact his instructions He was then asked about interest Having explained what often happened as between solicitors in relation to interest and how interest was often wholly or partly waived matters which I can safely skip over because Mr Gavin fully accepted that the full contractual interest had to be paid if necessary and his evidence was that if his client on the day could not pay it he would have had no trouble in obtaining it from the Allied Irish Bank He would have debited his own office account with the amount of the interest and would have paid it over to the vendor His evidence was that he was absolutely satisfied that if it came to the worst he would be able to recover the interest from his client s father the developer Mr McCarthy He added I know them well enough trust them enough for that There appears never to have been any dispute as to how interest was to be calculated which might have been a different matter The problem was a financial one and the purchaser was hoping to escape interest or at least escape part of it But I think it is perfectly clear that she was well aware that under the contract the liability to pay interest existed and she was equally well aware that what had to be performed was the contract as originally entered into As far as the side issues were concerned the evidence would seem to clearly establish that for the purpose of any closing that might occur on the 11th July they were not regarded as part of the contract except in so far as there were special conditions relating to them Some of the obligations in the special conditions were at any rate post completion obligations The narrative as to what exactly happened as and from Monday 11th July 2005 is crucial to the outcome of the case I will now explain it in detail I will do so primarily by reference to the evidence of Mr Gavin and I will refer briefly to any relevant conflicting evidence from Mr Hickey First of all I should mention that there was evidence from Mr Gavin that he sent a fax to the firm of John Shiel solicitors on Friday 7th July very shortly after he had telephoned the office It would therefore have been some time between 9 00 o clock and 10 30 on the Friday morning The fax read as follows Dear Mr Fowler I rang you on my return from a few days leave this morning but unfortunately you were not available My client has instructed us that apparently this sale is now back on track and is to complete immediately To this end I have arranged with AIB to draw down the monies on Monday morning and it can be forwarded to you by draft of sic by electronic transfer You might ring me in order to bring this protracted matter to a conclusion Yours sincerely Colm Gavin There was enclosed with a separate fax of the same date from Mr Gavin some maps relating to the side issues The hope was expressed that there would be agreement in relation to these matters but it was made clear that it would not hold up the closing of the sale That fax was sent also directly to Mr Fowler Mr Gavin then described what happened on the Monday morning i e Monday 11th July He rang the office of the solicitors for the vendor and asked for Mr Hickey but he was told that Mr Hickey was on holidays He then asked for Mr Fowler and he was told that Mr Fowler was in court and would be there all day Mr Gavin then explained to the receptionist the urgency of the matter as he had been told that there was a 2 00 o clock deadline and that he was arranging for monies to be put through to the account of the solicitors for the vendor and he asked the receptionist could she arrange that Mr Fowler would telephone him That phone call from Mr Gavin was at approximately 9 00 o clock in the morning Mr Gavin then went on to explain how he had arranged the monies with the bank and that it would be essential that they would be available by 2 00 o clock Mr Gavin had already approved the draft deed at an earlier stage All the usual documentation relating to Family Home Protection etc were in order It had been stipulated to the purchaser that the sale was to be completed in Dublin in the offices of John Shiel It is not entirely clear from the evidence whether if everything had moved smoothly Mr Gavin would personally have attended in Dublin at the firm of John Shiel though the more probable inference is that he would have done so At any rate he explained that any problem about that could be got over in one of two ways Either he could have been at the other end of a telephone line which is very common nowadays or his sister who is a Dublin solicitor could have attended on his behalf something she had done on behalf of his firm before At about 11 30 on the morning of the 11th July Mr Gavin received a telephone call from Mr Fowler He explained to Mr Fowler the urgency of the matter that he was putting the monies through anyway but Mr Fowler told him that he was caught in court and that he could not deal with the matter at that time but that he could complete it the following day Mr Gavin agreed to this suggestion as he had no problem with it As far as Mr Gavin was concerned there was simply an extension and nothing more until the following day He so informed his client He did not then travel to Dublin Despite the postponement Mr Gavin made it clear that he was still putting the money through At that stage as far as Mr Gavin was concerned and indeed as far as his client was concerned everything was on course for a closing of the sale in accordance with the contract on the following day Tuesday 12th July 2005 until Mr Gavin received a telephone call from Mr Hickey at about 12 30 in the morning of the 11th Mr Hickey immediately said to him over the telephone Why aren t you here in my office to complete this transaction According to Mr Gavin s evidence Mr Hickey told him that he his wife and his mother in law that is to say the vendor had travelled up from Kerry to complete the transaction on that day Mr Gavin then apologised but explained the position as he saw it but he was told by Mr Hickey it is too late now According to Mr Gavin though this was denied by Mr Hickey Mr Hickey said that he wanted the money to go back with his mother in law to Kerry and indeed that that was the exact words he used It emerged in the evidence that the vendor was not in Dublin at all Mr Gavin told Mr Hickey that he was quite happy to release the money because he knew the documents he was going to receive However Mr Hickey told him It is too late the sale is off That was the end of the conversation On the same day Mr Gavin wrote the following to Mr Hickey Dear Mr Hickey Our telephone conversation refers It is in order to release monies today you may send on the documents to me With regard to the right of way the map has to be agreed between the parties When same has been agreed I should be grateful if you would have the grant of right of way executed Yours sincerely Colm Gavin That elicited a reply from John Shiel solicitors in the following terms Dear Sirs We refer to the above mentioned matter and your facsimiles of the 8th July and 11th July As previously advised the contract for sale was rescinded and the contract deposit forfeited Accordingly this matter is at an end Any monies forwarded to us will be immediately returned to you Yours faithfully John Shiel solicitors There was some subsequent correspondence which I do not find it necessary to set out I wish to refer briefly now to the evidence of Mr Hickey In relation to the actual issues which are relevant to this case none of Mr Hickey s evidence is material except in so far as it relates to what was to happen on the 11th July 2005 The arrangements for that date of course were made between Mr Fitzpatrick and the purchaser It is clear beyond doubt from the evidence of those two witnesses that what was contemplated was a closing of the sale on the 11th July Mr Hickey on the other hand in his evidence seemed to suggest that all that was intended to be involved was some kind of round table meeting to see whether there was any basis on which a sale could go through notwithstanding the rescission In giving this evidence Mr Hickey was either mistaken or disingenuous Mr Hickey was in Kerry on his holidays at the time that the arrangements were made Mr Hickey explained that the 11th July had been chosen because he would have been coming up to Dublin on that date with a child who had an appointment in Crumlin hospital That would have been in the morning and therefore any matters relating to the sale would have had to be dealt with in the afternoon It appears from Mr Hickey s evidence that after Mr Gavin had had the conversation with Mr Fowler on the 11th July Mr Fowler telephoned Mr Hickey Mr Hickey then contacted Mr Gavin on his mobile and on essential matters his evidence is not significantly different from that of Mr Gavin Despite the arrangements already made according to Mr Gavin with Mr Fowler whereby a closing would take place on the 12th July as far as Mr Hickey was concerned there was to be no closing and his client was standing by the rescission Curiously enough this volte face seemed to be largely based on Mr Gavin not being in Dublin in circumstances where Mr Hickey alleged that the so called meeting at 2 00 p m was to be held in Dublin The telephone conversation took place according to the evidence of Mr Hickey which was not disputed by Mr Gavin about 12 30 or 12 45 It is clear that Mr Hickey in no uncertain terms informed Mr Gavin that any question of reviving the sale was off Quite apart from the evidence of Mr Gavin that if necessary the full interest would have been paid on closing the issue of interest never really arose because it could not have come into play until the intended closing Significantly although Mr Hickey both in direct examination and cross examination was trying to suggest that all that was arranged for the 11th July was a mere meeting he nevertheless was not able to give an accurate account of what Mr Fowler actually told him following Mr Fowler s conversation with Mr Gavin on the 11th When it was put to him that Mr Fowler must have told him he had had a conversation with Mr Gavin concerning a proposed closing for the 11th he said I don t know whether he said it was to do with the proposed closing or anything Furthermore Mr Hickey admitted that Mr Fowler in that conversation did say to him that he had told Mr Gavin he was going to be in court all day and could not deal with the matter on the 11th The obvious point was then put to Mr Hickey in cross examination as to how he could expect Mr Gavin to be in Dublin on the 11th in these circumstances Having regard in particular to the inconsistencies and hesitations in Mr Hickey s evidence the only credible account of what transpired in the discussion on the 11th July between Mr Gavin and Mr Fowler is that of Mr Gavin At any rate Mr Hickey s evidence in this respect would be mere hearsay and significantly as I have already mentioned Mr Fowler despite being in court was not called as a witness I have carefully considered the views of the learned trial judge but I cannot agree that the evidence is open to any conclusion other than that on the 11th July 2005 as extended to the 12th July 2005 the purchaser was ready and willing to close the sale in the manner and at the time stipulated There is no doubt that the purchaser was hoping to escape interest but there is nothing in the evidence to suggest that if the vendor insisted on full interest the purchaser would not have gone ahead with the purchase indeed quite the contrary The evidence also clearly establishes that the purchaser understood that it was the original contract as drawn up which had to be performed and that she was willing to do so notwithstanding some loose ends in relation to the side issues There remains however the important question of law is the court entitled to grant an order for specific performance based on estoppel notwithstanding that the contract had been rescinded The following clearly emerges from the evidence 1 There was a promise that the sale would be closed on Monday 11th July if the completion was done strictly in accordance with the original contract entered into at the auction 2 The arrangements for the 11th July were by agreement postponed to Tuesday 12th July 3 On the 11th July and after that agreed postponement the promise was unequivocally reneged upon by Mr Hickey on behalf of the vendor and thereafter the vendor insisted on the original rescission I should have mentioned of course that these new arrangements for the 11th July subsequently postponed to the 12th July were all without prejudice to that rescission in the event of the sale not being in fact closed by default of the purchaser It is I think common case that the purchaser if entitled to specific performance at all can only be entitled to it by virtue of an estoppel arising from the promise made by the vendor and communicated by Mr Fitzpatrick as slightly modified in terms of date by Mr Fowler of the solicitors for the vendor with some consequent detriment Was there such an estoppel I am quite satisfied that there was There appears to have been a great deal of argument and submission in the High Court to the effect that counsel for the purchaser had not made it clear whether at the end of the day he was relying on an alleged estoppel by representation or an alleged promissory or equitable estoppel Even if there was some validity in that criticism it seems to me that it is irrelevant The two forms of estoppel can frequently overlap that is to say the common law estoppel by representation on the one hand and an equitable estoppel arising out of a promise on the other It is clear from some of the modern English case law presented to the court and which I accept that estoppel by representation need not necessarily be confined to a representation that a particular fact is true It can be what has been described as an estoppel by convention that is to say the parties agree between themselves artificially to act as

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  • services thereunder for the purpose of enabling the Purchaser to have access to the Sold Lands from the Ballybeg Road so that the purchaser may develop the Sold Lands It is agreed that the ownership of the roads footpaths grass margins and kerbs together with services thereunder will remain with the Vendor until such time as they are taken in charge by the local authority The Purchaser shall enter into an indemnity in relation to the repair maintenance and insurance of all such roads footpaths grass margins kerbs and services etc as are constructed upon the Retained Lands until taken in charge by the local authority and shall indemnify the vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given 12 The Purchasers shall within the Perpetuity Period at their own cost and expense construct on the Sold Lands roads footpaths grass margins kerbs and services for the purposes of the development of the Sold Lands and shall bring such roads footpaths grass margins kerbs and services to a point two metres inside the boundary of the Retained Lands such that the Retained Lands are connected by such roads footpaths grass margins kerbs and services to the public roadway and services to enable the Vendor to connect into such roads footpaths grass margins kerbs and services for the benefit of the Retained Lands and every part thereof The Purchaser shall enter into an indemnity in relation to the repair maintenance and insurance of all such roads footpaths grass margins kerbs and services etc as are constructed upon the Sold Lands until taken in charge by the local authority and shall indemnify the Vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given The Pleadings and The Issues before the High Court The proceedings were instituted by the purchasers seeking a declaration that the agreement for sale of 4th March 2005 had been validly determined that the deposit had been validly forfeited and that the purchaser holds no contractual or other right title or interest in the lands agreed to be sold The defence and counterclaim delivered by the purchaser consists of denials and pleads that the course of conduct between the vendor and the purchaser had the effect that there was a further concluded oral agreement for completion of the sale on the 11th July 2005 By her counterclaim the defendant sought specific performance of the agreement for sale dated 4th March 2005 or in the alternative of the agreement complete on 11th July 2005 The purchaser delivered an amended defence and counterclaim in which she claimed the following additional relief If necessary a declaration that the plaintiff is estopped from relying on the purported rescission of the contract of 4th March 2005 or forfeiture of the defendant s deposit in respect of same by reason of the defendant s reliance on the plaintiff s conduct of negotiations leading to a revival of the said agreement and waiving the purported rescission of same by agreeing to closure of the sale on 11th July 2005 by which date the defendant had acted to her detriment by paying the full amount of consideration under contract to the plaintiff On the issues before the High Court the learned High Court judge held that the agreement for sale had been validly determined by the vendor and the deposit validly forfeited and indeed this was accepted at the hearing before this court by the purchaser The correspondence of 2nd June 2005 and 27th June 2005 were characterised by the purchaser in her pleadings as negotiations for the purpose of reinstating the sale to the defendant on certain terms The learned trial judge held that the purchaser never intimated a willingness to complete the contract in accordance with those terms and accordingly the original contract remained determined and the vendor was no longer obliged to complete it The events which occurred between 4th and 11th July the learned trial judge held did not create a new contractual relationship between the vendor and the purchaser and any question of compliance with the Statute of Frauds Ireland Act 1695 or part performance did not arise She so found on the basis that the purchaser did not meet the vendor s requirements by closing on the 11th July The purchaser s solicitor failed to turn up to complete the purchaser did not tender or evince an intention to pay interest in relation to special condition 11 the right of way remained at large although the vendor had conceded the purchaser s request for a grant of the same at closing and that there was no commitment by the vendor to comply with special condition 12 The learned trial judge then considered the events between 4th and 11th July 2005 in terms of estoppel The test for estoppel as set down by the Supreme Court in Doran v Thompson Ltd 1978 I R 223 at 230 by Griffin J is as follows Where one party has by his words or conduct made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly and the other party has acted on it by altering his position to his detriment it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no promise or assurance had been made by him and that he may be restrained in equity by acting inconsistently with such promise or assurance See also Ryan v Connolly 2001 1 I R 627 at 632 per Keane C J The learned trial judge found that Mr Fitzpatrick informed the purchaser that the vendor would close the contract in accordance with the contract at her solicitors office at 2 p m on 11th July 2005 The learned trial judge held that the purchaser did not meet this requirement in two particulars in the following terms 1 As to interest If completion took place in accordance with the contract the defendant would have been liable for interest She never evinced any willingness to pay interest and therefore as I have found she was not willing or prepared to complete on 11th July 2005 in accordance with the terms of the contract 2 As to the requirement for a face to face closing The plaintiff s case is that the requirement for a face to face closing in the plaintiff s solicitors offices in Dublin was imposed to obviate the difficulties which had been encountered in the transaction previously for example the issue of the location of the access to Ballybeg Road The defendant s solicitor was not in Dublin at 12 30 p m on 11th July 2005 and it is reasonable to assume that he could not have been in Dublin by 2 p m Given what had transpired previously and what was still outstanding between the parties I doubt if that would have been a practical solution In dealing with the contractual situation I sidestep the issue of the failure of the defendant and her solicitor to appear at the plaintiff s solicitors offices at the appointed hour However in the context of the application of the principles of equitable estoppel if all other things were equal in other words if before the appointed hour the defendant had indicated a willingness to complete in accordance with the terms of the contract including the payment of interest given the breakdown of communication within the plaintiff s solicitors office and the failure to give Mr Gavin any response either on 8th July or on the following Monday morning I think the equity of the situation would have been in favour of the defendant However that is entirely hypothetical The learned trial judge s findings on the issue of estoppel are as follows a the plaintiff through her agent Mr Fitzpatrick expressly represented to the defendant in a clear and ambiguous manner that if the defendant was able and willing to complete the purchase in accordance with the terms of the contract in her solicitors offices at 2 p m on 11th July she would complete b That representation was intended to affect the legal relations between the plaintiff and the defendant and to be acted on by the defendant although as I have concluded it did not create a new contractual relationship In my view equity would not have permitted the plaintiff to resile from that representation between 4th and 11th July 2005 While not conceding that an estoppel could not arise at all counsel for the plaintiff submitted that at most there was merely a suspension of the plaintiff s legal rights In my view the effect of the representation was the plaintiff s legal rights were suspended in the period in question c While following the representation the defendant acted and she suffered a detriment in the sense that she drew down the sum of 1 620 000 from AIB and became liable on that sum for a period of approximately one week in my view it would not be correct to say that she acted and suffered that detriment on foot of the representation The representation was that the plaintiff would close on terms of the contract which included the payment of interest Indeed in advancing her claim the defendant recognised that if she was successful she would be liable to pay interest at any rate for the period 8th April 2005 to 11th July 2005 The position adopted by the defendant and acted upon was that she was closing on her own terms and in particular that she was not liable for interest under the contract and could leave the precise definition of the access to Ballybeg Road at large until after completion d Given the failure of the defendant to indicate an ability and willingness to complete in accordance with the terms of the contract by 2 p m on 11th July 2005 the plaintiff s representation was spent and she was entitled to revert to reliance on her legal rights arising out of the termination of the contract For these reasons the issue of estoppel was determined in favour of the vendor The Appeal Before this court the purchaser s case was exclusively based on estoppel and in this regard it is necessary to examine in some detail the evidence given in the High Court i The evidence of Mr Hickey He was on holidays in Kerry from 28th or 29th June He left his partner Mr Fowler to deal with the file and memoed to him that while he was away he was to contact the witness if anything occurred on the file Prior to 11th July he had no communication from Mr Fowler To his knowledge his wife Anne Courtney made contact with Mr Fitzpatrick the auctioneer As far as he was aware the purchaser had been in contact with Mr Fitzpatrick looking for a last chance to close There were a number of conversations between his wife and Mr Fitzpatrick Anne Courtney conveyed to Mr Fitzpatrick that one last effort to complete might be made without prejudice to the vendor s position This would require a face to face meeting in his office and 2 o clock on the11th July was stipulated This was to fit in with an appointment for his daughter with a consultant in Dublin on that morning On 11th July between 11 30 a m and 12 15 p m he received a telephone call from Mr Fowler He was told that Mr Gavin the purchaser s solicitor was looking for him Mr Fowler had returned Mr Gavin s call and told him that he knew nothing about the matter and that Mr Hickey would be dealing with it As a result he telephoned Mr Gavin at about 12 30 or 12 45 p m His evidence of that phone conversation appears from the transcript as follows I started off with really Colm where are you I expected to see you in my office He said I am tied up or I am out of the office but the money is going to be electronically transferred I said Colm it was made clear that the only way this could happen is a meeting in the office and you are not there you know we have had enough and you know that s the end of the manner there is nothing that we can do from here Mr Gavin asked what would it take to deal with the matter that day and Mr Hickey replied that he would have to take instructions and that the monies would have to be released There was no discussion on interest He obtained instructions from the client He went to his office and then saw the correspondence from Mr Gavin of the 11th July He then wrote his letter of 11th July to Mr Gavin indicating that the matter was at an end In cross examination Mr Hickey said that he was in a position to complete on 11th July His understanding of the conversation between Anne Courtney and Mr Fitzpatrick was that Mr Gavin and his client would appear at his office to progress the matter and see if it could be completed He wanted Mr Gavin at the completion personally The witness believed that Mr Fowler had told him that Mr Gavin was going to be in court and could not deal with the matter on the 11th He had made it clear in his letter of 2nd June that a postal closing was out of the question Subsequent to the 11th July a contract was entered into with a member of the vendor s family for the sale of these lands together with other lands for 2 600 000 Mr Hickey was asked what was blocking progress on 11th July and replied Colm Gavin s absence As of the 11th July it was far from clear to Mr Hickey whether the purchaser had any intention of complying with condition 12 of the contract ii Anne Courtney The witness is the plaintiff s daughter and the wife of Mr Hickey She is a tax consultant specialising in property investment She was in regular contact with Mr Fitzpatrick He telephoned her to know if there was any way in which the vendor would consider one last chance and having spoken to the vendor it was decided that one last chance would be given to the purchaser She contacted Mr Fitzpatrick in early July She told them that without prejudice to the original contract the vendor would complete and that the purchaser should arrange a meeting for roughly 2 o clock with her solicitor and that the parties could talk She heard nothing back from Mr Hickey She did not know if the matter would close on 11th July but hoped that it would She did not agree with Mr Hickey s manuscript note in that she would not have said the word close but rather that they should meet to see if the matter could be progressed iii Mr Fitzpatrick He received a telephone call from Anne Courtney on 4th July 2005 She asked him to contact the purchaser with a view to closing the sale on Monday 11th July without prejudice to what was going on between the respective solicitors and that she did not want any correspondence He was to ask the purchaser to contact her solicitor to make arrangements to close the sale at 2 p m on Monday 11th July at the office of the vendor s solicitor He spoke to the purchaser immediately He told her that there was an opportunity to close the sale in accordance with the terms of the contract and that this was without prejudice On a later day but before 11th July the purchaser asked what was the position with regard to the open space and what was the position with regard to the wayleave for the sewerage and he informed her that that as far as he was concerned they were agreed in principle there was not a problem with them provided the mapping was agreed in both places and he did not expect a problem He had discussed these matters with Mr Hickey on an ongoing basis In cross examination he agreed that the wayleaves were not a sticking point between the parties He did not know what was going on in relation to interest and it was not raised with him It was an issue which was bound to raise its head many months later He was aware that Mr Hickey was on holidays and he asked Ms Courtney who would deal with the closing and was told that Mr Fowler would do so He told the purchaser that Mr Fowler would be dealing with the closing iv Ms McCarthy The purchaser gave evidence She is a management consultant Her father is a building contractor and property developer and own lands adjoining the lands agreed to be sold She was buying the property on her own behalf and not on behalf of her father At the time she was working in Clare in premises called The Kings five bars and a restaurant owned by her father After the contract had been terminated she was in constant touch with Mr Fitzpatrick On 4th July 2005 Mr Fitzpatrick told her the deal is back on again and that it was to close on 11th July at 2 p m as per the original contract no conditions The

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  • the contract The respondent must first therefore establish that there was such a failure on the part of the hotel owner or operator in this case to perform an obligation under the contract The mere fact that there was a spillage of food upon which the respondent then fell does not ipso facto establish that either the hotel failed properly to perform obligations arising under the contract Counsel for the appellant argues that for the purposes of determining the liability imposed on him for wrongful acts of a service supplier such as the hotel pursuant to Section 20 of the Act of 1995 it is not possible to discern whether the standard to be imposed on the hotel owner or proprietor for whose acts the appellant is being sought to be made liable is the Irish legal standard or the Spanish legal standard but that it must be the latter being the standard governing the place where the accident occurred Senior Counsel Mr McGovern for the respondent clarifies that he does not contend that S 20 of the Act of 1995 and by implication Article 5 of the Directive imposes strict liability on an organiser such as the appellant for the breach of obligations by a service supplier in all circumstances He submits that the effect of Section 20 of the Act of 1995 implementing the Directive is to place primary liability on the appellant for the proper performance of the obligations comprised in the contract package whether the obligations are to be performed by him or by others such as the hotel owner in Spain The appellant can escape liability only in the limited circumstances identified in Section 20 2 of the Act of 1995 that is to say only if the events in question could not have been foreseen or forestalled by the appellant or the hotel owner He submits that the intention to protect the consumer in circumstances such as the present is reinforced by the provisions of Section 20 2 of the Act of 1995 Finally he argues that since the contract provided for travel accommodation and the provision of meals on a half board basis it was an implied term of the contract between the appellant and the respondent that all services and facilities would be provided with reasonable skill and care and to a reasonable standard and they were not He reminded this Court that the High Court judge had found that on the evidence the hotel had been very satisfactory in all respects on an earlier occasion when the respondent had stayed there but not on the occasion in question in that any system which might ordinarily have operated in the hotel to avoid or minimize accidents had not operated appropriately or properly on the occasion in question for which the appellant as organiser was liable under the Act of 1995 Each of the parties to the proceedings has invoked Irish and United Kingdom case law in support of their respective submissions This case law is considered further below Conclusion For the purposes of this judgment it is essential first to set out the provisions of Section 20 of the Act of 1995 which transposed into Irish law the relevant corresponding provisions of the Directive The Act of 1995 has as its long title the following An Act to enable effect to be given to Council Directive No 90 314 EEC of 13 June 1990 of the European Communities on package travel package holidays and package tours to amend the Transport Tour Operators and Travel Agents Act 1982 and to provide for connected matters Article 5 of the Directive is transposed by the provisions of S 20 of the above Act which in its relevant part reads as follows 20 1 The organiser shall be liable to the consumer for the proper performance of the obligations under the contract irrespective of whether such obligations are to be performed by the organiser the retailer or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services 2 The organiser shall be liable to the consumer for any damage caused by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of the organiser or the retailer nor to that of another supplier of services because a the failures which occur in the performance of the contract are attributable to the consumer b such failures are attributable to a third party unconnected with the provision of the services contracted for and are unforeseeable or unavoidable or c such failures are due to i force majeure that is to say unusual and unforeseeable circumstances beyond the control of the organiser the retailer or other supplier of services the consequences of which could not have been avoided even if all due care had been exercised or ii an event which the organiser the retailer or the supplier of services even with all due care could not foresee or forestall 8 The provisions of this section are without prejudice to the provisions of the Hotel Proprietors Act 1963 emphasis added The Hotel Proprietors Act 1963 referred to in S 20 8 is an Act which legislates for certain rights and obligations concerning hotel proprietors and guests of a hotel The relevant provision of this Act is the following 4 1 Where a person is received as a guest at a hotel whether or not under special contract the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that for the purpose of personal use by the guest the premises are as safe as reasonable care and skill can make them The Occupiers Liability Act 1995 is an Act which legislates for certain rights and obligations concerning occupiers of premises and visitors to those premises Section 3 of that Act provides as follows 1 An occupier of premises owes a duty of care the common duty of care towards a visitor thereto except in so far as the occupier extends restricts modifies or excludes that duty in accordance with section 5 2 In this section the common duty of care means a duty to take such care as is reasonable in all the circumstances having regard to the care which a visitor may reasonably be expected to take for his or her own safety and if the visitor is on the premises in the company of another person the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor s activities to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon As concerns the Directive itself since Section 20 of the Act of 1995 faithfully transposes the provisions of Article 5 of the Directive it is not necessary to set out the terms of that Article separately It is however relevant to cite Article 8 of the Directive which reads Member States may adopt or retain more stringent provisions in the field covered by this Directive to protect the consumer It seems to me that the provisions of the Hotel Proprietors Act 1963 are within the ambit of Article 8 of the Directive since the obligation concerning the state of hotel or other premises as well as the safety of guests are provisions protecting the consumer which are or may be more stringent than the provisions of the Directive Similarly apart from the statutory protection given to hotel guests as set forth above and as specifically retained by the Act of 1995 an occupier s common law liability to visitors now enshrined in S 3 of the Occupiers Liability Act 1995 may well also fall within Article 8 of the Directive even if not specifically referred to in the Act of 1995 Having regard to Mr Counihan s argument for the appellant that the appropriate standard for the High Court to have applied is the standard operating in Spain and not the standard in Ireland the question arises as to whether the High Court judge was entitled to invoke the standard operating by virtue inter alia of the above sections of the above Acts or the established common law tests Section 20 of the Act of 1995 Section 20 1 of the Act of 1995 expressly makes the organiser primarily liable to the consumer and maintains a right of action over in favour of the organiser against the service supplier in the present case a supplier with whom the appellant entered into arrangements for the provision to the respondent of hotel accommodation in Spain on a half board basis What requires to be determined is what is meant by improper performance of an obligation and the consequent extent or scope of the liability of the appellant as organiser to the respondent as consumer First it is appropriate to have regard to the wording of the legislation On a plain reading of this it seems to me that the correct meaning to be attached to the combination of subsections 20 1 and 2 of the Act of 1995 is that when contractual obligations are assumed by an organiser the appellant in this case as part of a package holiday contract entered into with a consumer such as the respondent in the present case those obligations to the consumer remain the organiser s obligations and do not become the independent obligations of the service supplier such as the hotel in Spain to the consumer The Section speaks of a the obligations under the contract b irrespective of whether those obligations i e the organiser s obligations are to be performed by the organiser himself or whether such obligations are to be performed by other suppliers of services and c a right of action over is maintained by the organiser against such other supplier s for the latter s failure to perform the organiser s contracted for obligations Thus when the consumer the respondent in this appeal enters into the agreement it may well be that some of the organiser s contractual obligations will be performed by other persons such as hotel proprietors even in another Member State That however does not change the relationship between the organiser and the consumer who frequently will not even know the name of the supplier of the services not being performed by the organiser himself This is why when considering the meaning of Section 20 2 of the Act of 1995 Article 5 2 of the Directive that organiser s liability continues to exist unless there is to be no fault on his part because the failure was due to an event which the organiser or the supplier of service even with all due care could not foresee or forestall Apart from such excusing circumstances it seems to me that the organiser remains at all times liable to the consumer for the wrongful acts in question If it be the case that the organiser wishes to invoke the defence available in subsection 20 2 c ii of the Act of 1995 it is for him to establish that there was no such fault either on his own part or on the part of a supplier of the service which he has engaged once a failure to perform is established by the consumer On the questions raised by Mr Counihan as to the standard to be applied and as to whether the respondent discharged the burden of proof in this case it is useful first to consider the Irish and United Kingdom cases on the appropriate test or standard to be applied and which have been invoked by both parties In Ireland prior to the passing of the Act of 1995 the case law establishes that the standard of reasonable skill and care is appropriate in assessing the performance of services for the purpose of establishing whether there has been a breach of contract or that a party is liable to another in tort In McKenna v Best Travel Ltd 1998 I R 57 a case whose events predated the transposition of the Directive an appeal was taken to the Supreme Court on a limited point of law as to whether the defendant tour organiser was liable in tort for failure to give a warning in respect of conditions in Israel which the customer was visiting as part of a holiday The claim was originally founded both in contract and in tort The High Court judge had found that there had been no breach of contract but a breach of duty in tort to the customer In the course of his judgment on the appeal to this court Barron J stated The duty of care in tort arises from the proximity creased by the contractual relationship The duty extends to all matters concerning the safety well being and comfort of the tourists which by the nature of the relationship between the tourists and those providing the service would or should be known to the latter but not to the former The defendants in this case were not insurers that nothing would happen to injure the plaintiff Their obligation stops at taking all reasonable steps to ensure the safety and well being of their customers The test is what a reasonably prudent tour operator exercising reasonable care would consider necessary to inform those travelling with it The first of the English cases cited to this court is Hone v Going Places Leisure Travel unreported 13 June 2001 2001 a decision of the English Court of Appeal There the plaintiff in the course of an emergency crash landing in which passengers had to disembark from the aeroplane by emergency chute being unable to avoid colliding into another passenger who was stationery at the bottom of the chute was in turn struck by the next passenger exiting the aeroplane and suffered damage to his spine He sued the defendant under United Kingdom legislation corresponding to the Act of 1995 He alleged there was a failure to perform or an improper performance of the contract because inter alia there was no trained personnel at the top or bottom of the emergency chute and no instructions to passenger to remove footwear or to use the chute only when it was clear of other passengers He also claimed that the United Kingdom Regulations which transposed the Directive more or less verbatim imposed a strict liability test on the organiser subject only to the defences found in the Regulations which mirror those in Section 20 2 of the Act of 1995 The High Court judge held there that it was for the plaintiff to show that there was improper performance and in the context of that case this meant he had to show that his injuries were attributable to the fault of someone supplying services in relation to the package tour Liability was thus not absolute or strict subject to certain exceptions The judge also held that the plaintiff had in that case wholly failed to establish that the accident was anyone s fault The plaintiff was given leave to appeal to the Court of Appeal on the single question whether the English Regulations transposing the Directive imposed strict liability In the Court of Appeal Longmore L J found that it is necessary frequently to imply a term as to the standard of performance since the requirement will not normally be set out in any detail in a contract and that the normal implication will be that the service contracted for will be rendered with reasonable skill and care unless absolute obligations are assumed for example the provision of a hotel specifically with a swimming pool Whereas previously at common law it was controversial as to whether a travel agent himself assumed the relevant contractual responsibility or only agreed to put the customer into contractual relations with the actual provider of the service this situation is now resolved by the Regulations The United Kingdom Regulations do not give any guidance as to the extent of the obligation However the judge found that the case of Wong Wee Wan v Kwan Kin Travel Services Ltd 1996 1 WLR 38 was a good example of the approach of the common law on both questions In that case it was held that a term was to be implied into the contract that reasonable skill and care would be used in the rendering of the services which the travel agent had contracted to provide whether carried out by him or by someone else Longmore L J stated that it was not possible to determine whether a particular complaint founds improper performance by reference to the Regulations themselves He stated To my mind Regulation 15 2 does not give the answer to the question What is improper performance Rather it is a requirement of the application of Regulation 15 2 that there should be improper performance That can only be determined by reference to the terms of the contract There may be absolute obligations but in the absence of the assumption of an absolute obligation the implication will be that reasonable skill and care will be used in the rendering of the relevant service There will thus be no improper performance of the air carriage unless there is an absence of reasonable skill and care in the provision of that service If as here it is the claimant who seeks to rely on regulation 15 2 then he has to show that there has been improper performance Mr Dean submits that there was improper performance because the parties expected that the air carriage would be safely executed That would only be the position if there were a term of the contract that the air carriage would be safely executed For my part I

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  • on 24th November 2004 Both High Court decisions were grounded on an interpretation of Article 32 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender between Member States The effect of the judgments was to attribute to the Framework Decision a requirement that extradition requests received before the European Arrest Warrant came into effect on 1st January 2004 were to be handled under existing legislation O Donovan J reached this conclusion by holding that S I 725 of 2004 comprises domestic legislation which gives effect to the Framework Decision MacMenamin J also relied on Article 32 He held that the request in the present case having been received before 1st January 2004 fell to be governed by existing instruments relating to extradition The Appeal The outcome of the appeal depends firstly on the correct interpretation of section 8 7 of the Act of 1965 If the Appellant is correct the effect of that provision is that the request in the present case could no longer be processed pursuant to Part II of the Act once the order applying it in relation to Germany had been revoked The Respondent accepts that in that event the Appellant is not in lawful custody and is entitled to be released However if the Appellant s interpretation of section 8 7 taken on its own is correct a second question arises That is whether as was held in the High Court that interpretation is affected by Article 32 of the Framework Decision It will also be necessary to consider a new argument which the Court permitted to be presented at the hearing of the appeal by Mr Robert Barron Senior Counsel for the respondents It is based on provisions of the Interpretation Acts respectively of 1937 and 2005 concerning the effects of revocation of statutory instruments on existing situations Dr Forde Senior Counsel for the Appellant presented a separate argument namely that a legally valid request had not due to the absence of the further information sought by the Minister been presented by Germany until after the Framework Decision had been applied to that country This was presented very much as a subsidiary argument It was not fully argued at the hearing In any event it is not necessary to decide that issue in view of the result of this appeal I turn firstly to the interpretation of section 8 7 of the Act of 1965 I am satisfied that the words of section 8 7 are plain and clear From 23rd November 2004 the words providing that Part II shall cease to apply in relation to that country namely Germany had the effect that Part II had simply ceased to have application in relation to extradition to Germany The further steps in the extradition depended for their legal validity on the continued existence of an underlying legal situation but that legal state of affairs had ceased to exist No further steps could therefore be taken on foot of Part II requests received from Germany Section 8 7 contains no qualifying or excepting phrase designed to preserve the effectiveness of existing requests Mr Barron relied on the obligation placed on the State by section 9 of the Act but that section applies only to a country in relation to which this Part applies at the time of the request but it is also generally made subject to the other provisions of the Act There is in addition force in Dr Forde s further submission that the Oireachtas in enacting the Act of 2003 was fully conscious of the need where appropriate for transitional provisions Section 50 of that Act saved the effect of warrants issued in a place to which Part III of the Act of 1965 applied where they had been produced to the Commissioner of the Garda Síochána for the purposes of section 43 of that Act or in the alternative endorsed for execution Denham J in her judgment in O Rourke v Governor of Cloverhill Prison 2004 2 I R 456 at 463 described this as a saving clause for cases then being processed The Oireachtas adopted no corresponding saving clause with regard to existing Part II requests The principle of expressio unius est exclusio alterius can be helpful where there is doubt about a matter of interpretation In this case the provisions of section 50 suggest an awareness of the possible need for transitional provisions Even without this additional point however I would have been of the opinion that the wording of the section 8 7 was clear unambiguous and unqualified If Part II of the Act did not apply how could the Minister validly grant a certificate or the High Court issue a warrant for arrest It is interesting to note that section 8 of the Extradition Amendment Act 1994 amended section 27 of the Act of 1965 That provision deals with provisional warrants for arrest in urgent cases The amending words addressed at that time to the District Court spoke of a situation where a request for the provisional arrest of that person has been made on the ground of urgency on behalf of a country in relation to which this Part applies emphasis added The underlined words plainly require the Court to be satisfied in the cases to which that section applies that the request has come from a country in relation to which this Part applies The use of the present tense demonstrates that the legislature recognised that Part II must necessarily still apply at the time of court proceedings under that part The same necessarily applies to the certificate of the Minister pursuant to section 26 1 and the arrest warrant issued by the High Court pursuant to section 26 1 b It seems to me to be clear beyond argument that the High Court cannot issue a warrant pursuant to Part II for the arrest of a person for extradition to a country to which that part does

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  • Ireland seeking a determination from that court as to whether or not the removal and or retention of the children in England is wrongful within the meaning of article 3 of the Convention and or article 2 of the Regulation This request which no doubt was made under article 15 of the Hague Convention and perhaps also under article 15 of the Regulation was acted upon by the issue of a family law special summons made returnable for 25th July 2007 On 31st July a detailed pre trial order was made giving directions as to what pleadings should be filed and by what date Submissions were provided for and in accordance with Order 60 Rule 2 of the Rules of the Superior Courts the Attorney General was joined as a notice party A trial date of the 29th August which was suitable to the parties was assigned to the case On that occasion both the applicant and respondent were professionally represented by solicitor and senior counsel as was the Attorney General All parties made submissions and judgment was reserved at the end of the three day hearing It is that judgment which this Court now gives 5 In accordance with regular practice the procedure adopted in this case followed that which is appropriate to a special summons whereby the evidence is outlined by way of sworn affidavit Both parties were however given permission to serve a notice of intention to cross examine on the respective affidavits sworn by each of them Having effectively heard the entire case including the substantive submissions of all three parties I enquired if either the applicant or the respondent wished to pursue this notice of intention to cross examine The applicant s counsel was satisfied to rest the evidence on affidavit but the respondent sought to cross examine Mr G T on one specific area namely the grounds for his sworn belief that his two children and their mother were still habitually resident in this jurisdiction up to at the earliest about the 13th April 2007 I so agreed and that cross examination was conducted and concluded Statutory Provisions Concerning Entitlements of Unmarried Fathers Section 11 of the Guardianship of Infants Act 1964 as amended by s 13 of the Status of Children Act 1987 provides as follows 11 1 Any person being a guardian of an infant may apply to the Court for its direction on any question affecting the welfare of the infant and the Court may make such order as it thinks proper 2 The Court may by an order under this section a give such direction as it thinks proper regarding the custody of the infant and the right of access of the infant of his father or mother b order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as having regards of the means of the father or mother the Court considers reasonable 4 In the case of an infant whose father and mother have not married each other the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant and for this purpose references in this section to the father or parent of an infant shall be construed as including him Section 6A of the Guardianship of Infants Act 1964 as inserted by s 12 of the Status of Children Act 1987 provides 6A 1 Where the father and mother of an infant have not married each other the Court may on the application of the father by order appoint him to be a guardian of the infant 3 Rules of Court shall provide a special procedure for determining an application under this section where a the mother consents in writing to the appointment of the father as guardian and b the father is registered as the father in a register maintained under the Births and Deaths Registration Acts 1863 to 1987 and such procedure shall be as informal as is practicable and consistent with the administration of justice The Hague Convention Article 1 The objects of the present Convention are a to secure the prompt return of children wrongfully removed to or retained in any Contracting State and b to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention For this purpose they shall use the most expeditious procedures available Article 3 The removal or the retention of a child is to be considered wrongful where a it is in breach of rights of custody attributed to a person an institution or any other body either jointly or alone under the law of the State in which the child was habitually resident immediately before the removal or retention and b at the time of removal or retention those rights were actually exercised either jointly or alone or would have been so exercised but for the removal or retention The rights of custody mentioned in sub paragraph a above may arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that State Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights The Convention shall cease to apply when the child attains the age of 16 years For the purposes of this Convention a rights of custody shall include rights relating to the care of the person of the child and in particular the right to determine the child s place of residence b rights of access shall include the right to take a child for a limited period of time to a place other than the child s habitual residence Decision The learned trial Judge made a declaration that there was a wrongful retention of the children in question by the appellant in the United Kingdom on March 9th 2007 within the meaning of Article 3 of the Hague Convention because he was satisfied a Such retention was in breach of rights of custody attributed to in the words of the Convention an institution or any other body under the law of Ireland namely the District Court b The child was habitually resident immediately before such retention and c At the time of the retention those rights would have been so exercised but for the retention It was not in issue in this appeal that in principle rights of custody had been attributed to the District Court on 9th March 2007 the appellant contends that this attribution of rights in the District Court must be considered as ineffective by virtue of the inactivity of the respondent in pursuing his applications before that Court but I will come to that later The attribution of rights of custody to the District Court on the relevant date arises under Irish law which was set out in a judgment of this Court by Keane J as he then was in H I v M G 2001 IR 110 at 132 when he stated Even where the parent or some other person or body concerned with the care of the child is not entitled to custody whether by operation of law judicial or administrative decision or an agreement having legal effect but there are proceedings in being to which he or it is a party and he or it has sought custody of the child the removal of the child to another jurisdiction while the proceedings are pending would absent any legally excusing circumstances be wrongful in terms of The Hague Convention In such cases the removal would be in breach of rights of custody not attributed to the dispossessed party but to the Court itself since its right to determine the custody or to prohibit the removal of the child necessarily involved a determination by the Court that at least until circumstances change the child s residence should continue to be in the requesting state Clearly the same principle of law applies where there is retention of a child in another country where such proceedings have been brought and are pending This again is not in issue in this appeal In this case the respondent had applied to the District Court for directions pursuant to s 11 of the Act of 1964 regarding the custody of the infant and directions regarding access to the infant He also applied pursuant to s 12 of the Status of Children Act 1987 to be appointed a guardian of the infants concerned The applications had been duly served on the appellant and the return date for these applications before the District Court was March 9th 2007 As and from that date the learned High Court Judge found that custody of the infants had been attributed to the District Court That conclusion of law is not in issue Whether rights of custody could be considered to have been attributed to the District Court from an even earlier date the date of service of the application on the appellant does not arise in this appeal It was also not in issue that the habitual residence within the meaning of Article 3 of The Hague Convention in January 2007 the date when they were removed from the State was in Ireland What is in issue is whether that habitual residence continued up to and including March 9th the date of the wrongful retention as found by the learned High Court Judge At the hearing of the appeal there were two grounds upon which the appellant sought to challenge the trial Judge s conclusions in relation to wrongful retention within the meaning of Article 3 of The Hague Convention The first ground was that the learned trial Judge s finding that the habitual residence of the infants on the 9th March was in Ireland was unsupported by the evidence Alternatively since the finding of the trial Judge in this respect was largely based on Affidavits and on essentially uncontradicted aspects of the evidence this Court it was submitted is entitled to substitute for his appreciation of the facts and the inferences which he drew from them its own appreciation of the facts and draw its own inferences The only correct inference from the evidence it was submitted is that the appellant had prior to March 9th 2007 decided to reside permanently with the children in the United Kingdom and not to return to reside in Ireland It was on this basis that the appellant contended that the pre existing habitual residence in Ireland had come to an end prior to March 9th 2007 Since the habitual residence of the children was not in Ireland immediately before the act or date of retention the High Court erred in law in making the declaration by reference to Article 3 of The Hague Convention As regards the second ground of appeal the essence of the submission of Counsel on behalf of the appellant was to the effect that the attribution of custody rights to the District Court by virtue of the applications of the respondent relating to custody and access was negated by the absence of any order of the District Court which had adjourned the applications generally with liberty to re enter and furthermore was negated by the inactivity of the respondent to pursue all legal avenues open to him in order to progress those applications to finality The inactivity of the respondent it was submitted was of such a nature as to belie the bona fides of the application or his genuine intention to seek the directions sought Habitual Residence The issue concerning habitual residence is contested by the appellant as an error in a finding of fact I think it would be appropriate at this point to recite from the judgment of the learned High Court Judge the passage which demonstrates the reasons for his conclusions on this question 19 There is no dispute between the parties but that Ireland was the habitual place of residence of both the respondent and the children immediately prior the 2nd January 2007 Indeed the request to this Court could only have been made on that basis The issue under the Convention is at what point in time thereafter did Ireland cease to be their place of habitual residence For this purpose as I have said the acquisition of a new habitual residence is not necessary At para 18 of his grounding affidavit Mr G T avers that the respondent only formed an intention of remaining in England on or about or shortly prior to the 13th day of April 2007 on which date that intention was albeit inferentially first communicated to him That averment has never been denied by the respondent and she has not sought in her replying affidavit to take issue with it or otherwise to specify an alternative date when she formed a settled intention of not returning to this jurisdiction Indeed I am satisfied from the evidence that this averment of the applicant is largely correct and I am not dissuaded from this view by the later alternative date of the 2nd May 2007 which has also been suggested by him 20 This conclusion is supported by the following At para 43 of her replying affidavit Ms O states that her intention of going to England on 2nd January 2007 was for the purposes of getting some respite This is confirmed by a letter written by her solicitor dated 16th January in which it is expressly acknowledged that the respondent is currently temporarily in the United Kingdom In addition that letter gives her address as being the family home in Ireland In that letter she also offers to meet the applicant either in England or in Ireland with a mediator By way of response dated 25th January Mr D P solicitor indicates that whilst difficulties had arisen in the relationship his client the applicant did not view the circumstances as constituting an irretrievable breakdown of that relationship On his behalf it was further stated that he would commit himself fully to retrieve matters provided Ms O returned to this jurisdiction On 31st January Messrs A B and Company Solicitors on behalf of the respondent repeats her offer of returning to this jurisdiction so as to meet with a mediator On 6th February the same firm of solicitors refers to the efforts made by the respondent to contact the applicant indicating that she had telephoned him each day for the previous six weeks Moreover they stated that if Mr G T wished to deal directly with the respondent their firm would cease to act for Ms O Once again an offer was made of returning to this jurisdiction to meet with the applicant and a mediator so as to try and seek a resolution to this matter It is further stated that she the respondent is not under any circumstances trying to keep your client s children from him the applicant In my view these events are consistent only with Ms O s absence from the family home being temporary and that throughout this period she had not formed any settled intention to cease to have her habitual residence in this jurisdiction 21 During the cross examination of Mr G T the position became a little clearer It was suggested to him that the respondent had prior to the 2nd January cancelled her Irish children s allowance gave up her job and soon after arriving in England enrolled her son J in a local school These steps it was suggested must have meant to him that Ms O had ceased being habitually resident in this jurisdiction either in January or at the latest early February 2007 If that was indeed true which the applicant strongly denies it remains rather surprising why the respondent herself did not so aver on affidavit In any event the correspondence up to at least the 6th February 2007 belies this suggestion Moreover Mr G T said that up to approximately the middle of April the respondent was constantly in communication with him mostly by text indicating that she loved him and enquiring from him as to whether he loved her Questions were frequently raised about whether she could have the house if she returned Given these communications as well as the matters mentioned above the applicant firmly believes and so states that at all times Ms O had every intention of returning to this jurisdiction so that matters could be resolved between them and their family unit reunited It was only when on or about the 13th of April when the Irish proceedings were before the District Court that he began to realise the respondent may not return He got this feeling or impression when she or someone on her behalf indicated that she would not consent to the applicant been appointed guardian of the children In fact it would appear that her objections in this regard were communicated by way of letter dated 4th April In any event Mr G T remained insistent that the first formal notification which he had of Ms O s intention to remain in England came only on 2nd May during the course of the English proceedings Whether that be correct or not I am quite satisfied that up to then there is nothing in the evidence in the correspondence or in court documents which gave the impression that the applicant did not intend to return to this jurisdiction In fact her conduct as above described is quite inconsistent with the existence of any formed or declared intention of not

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  • of Limitations Amendment Act 1991 became known on or about 20th September 2000 Events which arose after that were he held not relevant to the issue to be decided which was confined entirely to whether or not the plaintiff was entitled to invoke the provisions of the Act of 1991 Having held that he was the plaintiff therefore had 3 years from the 20th September 2000 within which to issue an amended writ and he had done so The Appeal Essentially the grounds of appeal are six in number and can be briefly described as follows That the learned trial judge erred in the following manner a His finding that the plaintiff s solicitor had discharged his obligations as a reasonable and prudent solicitor was not supported by the evidence b In his conclusion that the plaintiff s solicitor s reliance on a defective Land Registry search constituted sufficient discharge of his professional duties and obligations to pursue reasonable inquires and investigations prior to issuing proceedings c He wrongly concluded that there was no obligation on the plaintiff s solicitors to conduct a search on the Folio relating to the property at Windmill Road d His finding that the plaintiff did not have sufficient knowledge to identify the third named defendant as the occupier of the premises was not supported by the evidence e He failed to apply an objective test in relation to the plaintiff s knowledge concerning ownership and occupation of the premises f He wrongly found that the proceedings against the plaintiff were not statute barred pursuant to the provisions of the Statute of Limitations 1957 2001 Written submissions were filed on behalf of the third named defendant and also on behalf of the plaintiff and while I have had full regard to these I do not find it necessary to set out in any significant detail the content of those submissions Essentially the third defendant seeks to support the various grounds of appeal a on the basis of extracts from the evidence adduced during the course of the hearing in particular certain evidence which was not controverted and b on the basis of the correct application of case law which will be referred to in greater detail below while counsel for the plaintiff as respondent considers that the central issue in the case was the reasonableness and extent of the inquiries made by the solicitor for the plaintiff He contends that the findings of the High Court judge were wholly correct and were based on the evidence tendered by Mr Carney in the course of the High Court proceedings and upon which the learned High Court judge was entitled to rely Conclusion It is common case that the proceedings issued by the plaintiff against the defendant pursuant to the order of the Master referred to above were served out of time that is to say outside the 3 year period ordinarily provided for by the Statute of Limitation Act 1957 in respect of a tort actions claiming damages for personal injuries of the type alleged in these proceedings However the provisions of that Statute have been amended and amended in a significant manner by the provisions of the Statute of Limitations Amendment Act 1991 the Act of 1991 and in particular S 2 thereof This reads as follows 2 1 For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person s date of knowledge whether he is the person injured or a personal representative or dependant of the person injured references to that person s date of knowledge are references to the date on which he first had knowledge of the following facts a that the person alleged to have been injured had been injured b that the injury in question was significant c that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence nuisance or breach of duty d the identity of the defendant and e if it is alleged that the act or omission was that of a person other than the defendant the identity of that person and the additional facts supporting the bringing of an action against the defendant and knowledge that any acts or omissions did or did not as a matter of law involve negligence nuisance or breach of duty is irrelevant 2 For the purposes of this section a person s knowledge includes knowledge which he might reasonably have been expected to acquire a from facts observable or ascertainable by him or b from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek 3 Notwithstanding subsection 2 of this section a a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain and where appropriate to act on that advice and b a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury Given the amendment to the Statute of Limitations 1957 by the provisions of S 2 of the Act of 1991 as set out above it is appropriate to commence a consideration of the law by seeking to ascertain whether the plaintiff can come within the provisions of S 2 2 a of the Act and whether the learned High Court judge correctly found that he did so The first port of call so to speak in seeking to determine a person s knowledge for the purposes of S 2 2 a is to discover from the evidence adduced in the High Court whether there were facts from which the plaintiff could have observed or ascertained the identity of the appropriate defendants in

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/14c58b69c78f8f4f802573940057a26a?OpenDocument&TableRow=2.1 (2016-02-09)
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