archive-ie.com » IE » S » SUPREMECOURT.IE

Total: 1020

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".

  • matter and the learned trial Judge who appears to have assumed that the clinical notes had been admitted asked to see them Counsel for the Plaintiff said the notes had not been admitted in evidence and called for the originals to be produced This was done and at that stage the first Defendant disclosed that PSA 6 52 was an addition which I made to the notes at a later date He explained this by saying that in December 2002 when he received a letter from the Plaintiff s solicitor threatening an action against him he reviewed his notes and he also reviewed his correspondence with the Plaintiff s general practitioner In the course of this correspondence in July 2001 he had told the general practitioner that he was going to arrange to have a PSA repeated in about six weeks time He said that a letter to a general practitioner would normally be a more complete record and he assumed that he had omitted this from his clinical notes It should be noted that he did not say in his evidence in chief that he recollected having told the Plaintiff to have an additional test done in six weeks time Under cross examination the first Defendant conceded that I do not say with certainty that I did that or that I gave that instruction to Mr Philp I cannot remember the consultation So if I understand your question to be asking me am I sure that I gave that direction to Mr Philp can I say I asked him to have it done the answer is no I cannot say that Subsequently in the course of cross examination Counsel for the Plaintiff sought to ask him when was the first time that he had disclosed to anyone that he had altered the document Through his Counsel the first Defendant claimed privilege on the basis that he was being asked to disclose a communication between a client and his lawyer and this objection was upheld However in cross examination he did say that he had realised recently that there was a possibility that he did not advise the Plaintiff to have a test done as recorded in the notes and added And I then took the step of contacting my legal team and informing them of the situation in relation to the note Subsequently he said that the decision to disclose the fact that the document had been altered was made approximately one week before the hearing and later said I at all times up to recently by which I mean you know approximately two weeks ago was of the mind that I had asked for this PSA test to be done He repeated on several other occasions in the course of the cross examination that before the action had commenced he contacted his legal team and discussed the matter with them and sought advice The learned trial Judge having heard all the evidence stated at page 26 of his judgment Given Mr Ryan s evidence in Court that he has no recollection of the consultation of the 12th July 2001 I cannot however accept his evidence that he was completely sure that in altering that record he was only completing the record so that it reflected the true situation I believe on the balance of probabilities that on receipt of the solicitor s letter in December 2002 he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act he inserted a note which he felt would assist him in his defence of what was obviously going to be a claim against him This is an extremely serious finding against the first Defendant It is a finding that the first Defendant deliberately and knowingly altered a document which he must have known would be used in court proceedings with the intention of as the learned trial Judge said assisting his case which in fact means with the intention of deceiving the court and of attempting to deprive the Plaintiff of damages to which he has subsequently been found to be lawfully entitled That matter is of itself extremely disturbing because obviously the first Defendant had instructed his legal advisors that he had requested the Plaintiff to have a further PSA test in six weeks time His legal advisors quite properly at the time in effect represented to the Plaintiff and his advisors that this was a fact which would be proved by the first Defendant I will come to these matters later in the judgment In addition to misleading his legal advisors the Plaintiff also sought to and succeeded in misleading his own expert witness He prepared a case summary submitted to Mr Michael Murphy a consultant urologist who gave evidence on his behalf which was headed Case Summary In the course of that case summary he made the following statements I asked him to have a serum PSA measurement carried out after six weeks in the Middle East and to contact me with the result and Given that I felt that prostate cancer was only a remote possibility would see it as good medical practice to try and avoid what appeared to be unnecessary worry and anxiety for a patient over a period of six weeks while his next investigative assessment i e repeat serum PSA was awaited Had the follow up PSA test been carried out as instructed and in the event that the follow up PSA test was not showing signs of decreasing and indeed were it noted to be increasing I would have expressed appropriate concern and What transpired was that Mr Philp did not contact me with a PSA result as requested In my view this was a clear attempt to mislead a witness who the first Defendant knew was going to give evidence as an expert and therefore would be regarded by the Court in that light Through misleading Mr

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/2701bb2e3ee293c880256f71003ed4b9?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • presented some practical difficulties which are indirectly related to one of the items in dispute The consent had provided that the respondents were to have the accounts audited up to the valuation date by one of a number of named firms of auditors The arbitrator accepted the assignment and proceeded immediately to propose a timetable for the exchange of submissions and meetings The original timetable turned out to be too ambitious Procedural disputes developed between the parties particularly about the Appellant s solicitors demands for extensive documents and information from the Respondent and the company and the response that the Appellant had been the Finance Director of the company and was privy to most of the information in any event Whatever the rights and wrongs of these disputes the arbitrator extended times and regulated procedures Matters dragged on throughout 2001 Only two of these procedural disputes are now relevant Firstly the Respondent s original written submissions to the arbitrator were accompanied by a report from Price Waterhouse Coopers hereinafter PWC A covering letter explained that neither PWC nor any other firm had been able to prepare a report on the Balance Sheet at the relevant date These submissions were not sent to the solicitors for the Appellant It had been envisaged that submissions would be exchanged The Appellant s solicitors insisted that there be audited accounts up to 21st July 2000 as provided in the consent and expressly included in the terms of reference of the arbitrator and refused to accept the PWC report as satisfying the requirements of an audit Deloitte and Touche prepared a report and accounts The Respondent s solicitors sent a copy to the arbitrator and stated that they intended to update the submissions already made They formally withdrew the earlier submissions and promised new submissions by a date which they did not meet but it was later extended On 4th December 2001 the arbitrator sent the parties a new note of procedures to be followed He stated that all existing submissions were to be disregarded and that new submissions were to be made by 14th December and that he would exchange these forthwith The Respondent s submissions though late were received by the arbitrator within a final extended period up to 18th January 2002 The Appellant s solicitors said that they expected that their own original submission prepared by BDO Simpson Xavier should be included More importantly they demanded and this has become one of their grounds of complaint that the original submissions of the opposing party would be included as there would be essential comparisons to make between it and their present submission This point has been repeatedly made in various forms The arbitrator declined this request responding that he was not concerned with earlier submissions if they are not part of the final submission However it should be noted that the Appellant was provided with a copy of the PWC report itself They were deprived only of the Respondent s original submissions which had been withdrawn Secondly the arbitrator ruled that the parties should make submissions which would be exchanged He made no provision for either party to submit a rejoinder which also became a bone of contention in due course The oral hearing took place on 21st February 2002 Both parties were represented by Senior Counsel Apart from the two procedural matters already mentioned the Appellant claims that the arbitrator misconducted himself by making certain rulings concerning the basis of the arbitration His task was to value the Appellant s 39 shareholding in the company A minority shareholding may attract a significantly lower than proportionate valuation Hence the precise terms of reference of the arbitrator may be crucial to the basis of valuation The arbitrator stated his understanding at the outset that the valuation was to be determined on the basis of a willing seller and willing purchaser He said that he had no role or function as to the circumstances that arose in the valuation being pursued This was to be described not necessarily accurately as an open market valuation Mr Michael Cush Senior Counsel who represented the Appellant at the arbitration expressed fundamental disagreement with this approach He proposed to call evidence to show that the company had been run as a quasi partnership Mr Shipsey Senior Counsel for the Respondent opposed the calling of such evidence He said that the terms of reference were clear and limited to valuing a 39 stake in a series of companies on the basis of a willing purchaser He also said that the valuation was to be on the basis of a willing vendor and a willing purchaser not a specific vendor and purchaser Mr Cush in response accepted that the arbitrator was not being asked to find oppression but argued that whether or not here was a quasi partnership was relevant in determining whether there should be a discount for a minority shareholding Having heard these arguments the arbitrator repeated his opening rulings and added that he was not prepared to get involved in any way in the background or circumstances that led up to the litigation in any shape or form He ruled that he was not concerned with the identity of either vendor or purchaser The other complaint concerning the arbitration was more procedural The Respondent s solicitors sent to the arbitrator but not to the Appellant s solicitors a document purporting to be a rejoinder to the Appellant s submission As already stated such a pleading was not provided for in the procedures adopted by the arbitrator At the opening of the hearing the arbitrator referred to a letter dated 8th February which he had received from the Respondent s solicitors stating that he would refer to it later He suggested two different ways of dealing with this letter One was by a short adjournment after the opening statements The other was to simply read it into the record as part of the oral submissions as it was a response to the submission that had been made by the other side He said that he had copies but he did not make them available at that stage Nor however was he asked to provide copies after he had asked for comments on the procedure In fact he adopted the second procedure Having concluded the oral hearing the arbitrator adjourned to prepare his award On 21st March 2002 the solicitors for the Appellant wrote by fax to the arbitrator In a lengthy letter they argued that the arbitrator had misinterpreted his terms of reference on the issue of the correct basis of valuation They said that this was a matter on which a full argument should be had before any decision was reached The letter suggested at several points that the arbitrator might find himself in contempt of the court order albeit unintentionally They suggested that the arbitrator reconvene the arbitration for the purpose of hearing argument as to the appropriate method of valuation The letter ended by asking the arbitrator to withhold reaching a final determination to give their client not less than fourteen days notice if you intend to deliver your decision so that they sic may take such proceedings as are necessary By a return fax letter of the same day the arbitrator objected that it was wholly inappropriate and indeed totally wrong that any party should make contact of any nature with the arbitrator on the matters in issue He said that his award had been completed on 18th March but that the fax had arrived before its issue After brief reference to his terms of reference he stated that he would defer issuing his award until mid day on Friday 12th April a period in excess of the fourteen days which had been requested The letter concluded If you wish to make an application to the High Court in the matter you should do so before 12 April 02 In the alternative you can withdraw your faxed letter of 21 March The solicitors for the Appellant in a fax letter of 25th March stated Having taken my client s instructions he has indicated that we are prepared to take up the award on his behalf The letter indicated that the Appellant was reserving his rights but stated that there was no need to defer the issue of the award By letter of 28th March 2002 the arbitrator communicated his award to the parties Misconduct The Appellant has made the following complaints of alleged misconduct against the arbitrator arising from these events The two procedural complaints are set out above The substantive complaint relates to the approach to valuation adopted by the arbitrator and has concentrated on different aspects of the rulings The following represents the way in which these complaints were presented at the hearing of the appeal 1 The arbitrator wrongly decided that he was deemed not to know the identity of the vendor and the purchaser without hearing adequate submissions entitling him to reach that conclusion 2 The arbitrator wrongly ruled out consideration of the terms of the Court order exclusive of the Consent 3 The arbitrator ruled out evidence on the issue of quasi partnership or the appropriateness of a minority discount 4 The arbitrator failed to provide the Appellant with the original submissions of the Appellant as based on the PWC report 5 The arbitrator wrongly permitted the Respondent to introduce the rejoinder document of 8th February 2002 in particular by ruling on the matter before the letter was read at the hearing In addition to alleging misconduct the Appellant asks that the Court remit the award to the arbitrator pursuant to section 36 of the Arbitration Act 1954 All of these complaints were dismissed by Lavan J in a careful written judgment The learned judge summarised the submissions of the parties and concluded that there was no basis for interference with the award He held that the arbitrator had conducted himself correctly within the terms of his appointment Legal Principles The Appellant relies on the provisions of the Arbitration Act 1954 in seeking to have the arbitrator removed and his award set aside Section 36 1 provides as follows In all cases of reference to arbitration the Court may from time to time remit the matters referred or any of them to the reconsideration of the arbitrator or umpire Section 37 reads Where an arbitrator or umpire has misconducted himself or the proceedings the Court may remove him Section 38 1 provides Where a an arbitrator or umpire has misconducted himself or the proceedings or b an arbitration or award has been improperly procured the Court may set the award aside As counsel for the Appellant has submitted the notion of misconduct does not connote moral turpitude He says that his client had been procedurally disadvantaged by the rulings of the arbitrator and that this would suffice Atkin J in Williams v Wallis and Cox 1914 2 KB 478 at page 484 spoke of the meaning of the expression That expression does not necessarily involve personal turpitude on the part of the arbitrator and any such suggestion has been expressly disclaimed in this case The term does not really amount to much more than such a mishandling of the arbitration as is likely to amount to some substantial miscarriage of justice and one instance that may be given is where the arbitrator refuses to hear evidence upon a material issue Not surprisingly cases in which arbitral awards have been set aside for misconduct are few and far between We can leave aside obvious or extreme cases of financial misbehaviour or personal misconduct such as simple neglect by the arbitrator to perform his task Real cases of misconduct may arise in the conduct of the arbitration where the arbitrator acts unfairly either by clear acts of favouritism towards a party or adopts procedures which place one or other party perhaps even both at a clear disadvantage It seems to me that the standard or test of misconduct of such a nature would be something substantial something that smacks of injustice or unfairness One of the cited examples is of an arbitrator inspecting the farm he was to value in the presence of one party and in the absence of the other or of any representative of the other In the Matter of an Arbitration between Brien and Brien 1910 2 I R 84 This was considered by Wright J to be improper and inconsistent with the judicial character of an arbitrator There is a sharp distinction between acts committed in the course of the arbitration and its result Mere error is not misconduct Parties submit disputes including disputes as to the law to arbitration They expect the arbitrator to rule on all matters in dispute but they do not have any guarantee that the arbitrator will reach the correct result An arbitrator may err in his interpretation of the law or of the facts without being guilty of misconduct Though he was not dealing with an allegation of misconduct McCarthy J set the tone for the correct judicial approach to arbitral awards in Keenan v Shield Insurance Company 1988 I R 89 at page 96 Arbitration is a significant feature of modern commercial life there is an International Institute of Arbitration and the field of international arbitration is an ever expanding one It ill becomes the courts to show any readiness to interfere in such a process if policy considerations are appropriate as I believe they are in a matter of this kind then every such consideration points to the desirability of making an arbitration award final in every sense of the term Church and General Insurance Company v Connolly and McLoughlin Unreported High Court Costello J 7th May 1981 itself is an example of the type of fine combing exercise which courts should not perform when it is sought to review an arbitration award Insofar as the Appellant relies independently on section 36 of the 1954 Act to ask the Court to remit the award he cites the decision of Herbert J in the High Court in McCarrick v Gaiety Sligo Limited 2001 2 I R 266 In that case where the arbitration was to be based on written submissions alone the applicant failed through an oversight to furnish his submissions to the arbitrator and asked the court to remit the award pursuant to section 36 Herbert J said that he was dealing with a procedural mishap This had had the effect that the submissions of only one party were before the arbitrator Herbert J could not see any imperative of policy reason or justice which should cause this court to set any permanent inflexible and immutable limits to the exercise of the wide power conferred upon it by the Oireachtas in s 36 1 of the Act for the obvious purpose of ensuring justice and fairness between parties within the arbitration framework page 273 He cited another passage from the judgment of McCarthy J as follows Section 36 would appear to be the procedure appropriate for example to a case of patent mistake in monetary calculation in the giving or not giving of a particular credit in an award that is on its face ambiguous or uncertain in a case where the arbitrator himself seeks to rectify some error and perhaps where fresh evidence has become available subject to the standard rules of an appellate court in such cases In reaching his own decision on the interpretation of section 36 Herbert J followed the dictum of Donaldson M R interpreting the equivalent English provision in King v Thomas McKenna Ltd 1991 2 Q B 480 In my judgment the remission jurisdiction extends beyond the four traditional grounds to any cases where notwithstanding that the arbitrators have acted with complete propriety due to mishap or misunderstanding some aspect of the dispute which has been the subject of the reference has not been considered and adjudicated upon as fully or in a manner which the parties were entitled to expect and it would be inequitable to allow any award to take effect without some further consideration by the arbitrator In so expressing myself I am not seeking to define or limit the jurisdiction or the way in which it should be exercised in particular cases subject to the vital qualification that it is designed to remedy deviations from the route which the reference should have taken toward its destination the award and not to remedy a situation in which despite having followed an unimpeachable route the arbitrators have made errors of fact or law and as a result have reached a destination which was not that which the court would have reached This essential qualification is usually underlined by saying that the jurisdiction to remit is to be invoked if at all in relation to procedural mishaps or misunderstandings This is however too narrow a view since the traditional grounds do not necessarily involve procedural errors The qualification is however of fundamental importance Parties to arbitration like to parties to litigation are entitled to expect that the arbitration will be conducted without mishap or misunderstanding and that subject to the wide discretion enjoyed by the arbitrator the procedure adopted will be fair and appropriate What they are not entitled to expect of an arbitrator any more than of a judge is that he will necessarily and in all circumstances arrive the right answer as a matter of fact or law That is why there are rights of appeal in litigation and no doubt would be in arbitration were it not for the fact that in English law it is left to the parties if they so wish to build a system of appeal into their arbitration agreements and few wish to do so preferring finality to legality to adopt Lord Diplock s terminology The conclusion of Herbert J arrived at after very careful consideration goes some way to open up the

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/ccfb6aaba26bdb9980256f70006033de?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • already a sanction in place He concluded that the second named respondent was correct and refused the relief sought Submissions of the appellant On behalf of the appellant it was submitted that the late filing fee is neither in form nor in substance a criminal penalty but is rather in the nature of the civil or administrative sanction imposed for failing to file the annual return of a company in a timely fashion as required by the act The object of the late filing fee and the accumulative daily fee is designed to promote and encourage the timely filing of annual returns for the current year Since its purpose is administrative it was submitted that the payment of the late filing fee does not preclude the appellant from proceeding with a prosecution pursuant to s 125 for the offence of failing to file a return within the prescribed time The late filing fees have no relationship with the prosecution and so far as they are relevant at all they are relevant only to issues of mitigation in respect of any fine to be imposed for the actual offence It was further submitted that the principle of double jeopardy could not be invoked in favour of the company in a prosecution before the District Court unless the filing fee is determined to be in the nature of a criminal penalty The principle of double jeopardy does not apply simply where there is an overlap between the criminal law on the one hand and the civil law on the other Counsel for the appellant also submitted that the courts have considered in a number of cases the characteristics which distinguish civil matters and rely inter alia of the decisions of this court in Melling v O Mathghamhna 1962 I R 1 and McLoughlin v Tuite 1989 I R 82 It was submitted that this case law supported the appellants contention that the imposition and collection of fees imposed only because of the lateness of the filing of the return of the company was not capable of being considered a criminal penalty in which case the principle of double jeopardy had no application Decision As regards the question as to whether the imposition of late filing fees were both in form and substance purely administrative I consider first of all the formal nature of the obligation to pay late filing fees The companies registration office has a regulatory responsibility for many tens of thousands of companies Receiving and dealing with the annual return from each of them must be a formidable administrative task and no doubt there is in place management procedures and structures to deal with them It is also self evident that it is in the interest of good and efficient administration that annual returns from companies are filed in time within the due date laid down by law In an ideal world all such returns should be made in time and it seems to me a legitimate administrative objective to

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/e866a3a0126bf39180256f73005654e6?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • the enforcement unit of the Companies Registration Office who swore the principal affidavit on behalf of the appellant uses expressions such as late filing penalty the word in the Act and in the relevant Statutory Instruments consistently appears to be fee There is nothing wrong in calling a substantially increased fee for a late return a penalty provided that that word is not given the narrow connotation of punishment It would seem perfectly obvious that the motivation behind imposing substantially increased fees for late filing is one of deterrent rather than punishment Of course again difficulty is encountered with terminology because in the criminal jurisdiction a sentence may have a deterrent aspect Throughout the ordinary commercial world there may often be extra payments imposed for late documents but by no stretch of the imagination could the increased fee be regarded as a punishment for a criminal offence The charges by their very nature and character are administrative whether they be standard charges or increased charges to deter late applications For this reason I am satisfied that however legitimate in a moral sense the grievance of the second named respondent may be there can be no question of the principle of double jeopardy having any relevance The principle of double jeopardy is well known throughout the common law world In the United States of America it has constitutional status stemming as it does from the Fifth Amendment to the U S Constitution This derives from the words nor shall any subject for the same offence to be twice put in jeopardy of life or limb It has been said that there are three essential protections included in the principle of double jeopardy These are 1 Protection from being retried for an acquittal 2 Protection from retrial after a conviction 3 Protection from being punished multiple times for the same offence The principle of double jeopardy has no application whatsoever as between one criminal proceeding and one civil proceeding For the decision of the first named respondent to be upheld therefore it must be demonstrated that a criminal punishment had already been imposed The nature of a criminal proceeding has been considered in a number of Irish cases such as Melling v O Mathghamhna and the Attorney General 1962 I R 1 and several other cases also Lavery J in the Melling case made the following observation at p 9 Apart from authority it seems to me clear that a proceeding the course of which permits the detention of the person concerned the bringing of him in custody to a garda station the entry of a charge in all respects and the terms appropriate to the charge of a criminal offence the searching of the person detained and the examination of papers and other things found upon him the bringing of him before a district justice in custody the admission to bail to stand his trial and the detention in custody if bail be not granted or is not forthcoming the imposition

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/1984fd5624e8e19e80256f700060f2b3?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • with Wyeth its orders could not have been fulfilled to meet their requirements and that was why annual forecasts of volumes were made so that the necessary quantities of raw materials i e board would be in stock at Dakota to meet the orders placed Those stocks of board had to be bought in from board manufacturers and the lead time for that was about 10 12 weeks He said that the business relationship with Wyeth could not have developed and matured in the way it did if Dakota were to operate only on the basis that Wyeth had no obligations over and above what was stated on the order form but he had to accept that on paper that was the extent of Wyeth s obligation in relation to goods ordered page 9 Mr Fox also confirmed in his evidence that in early 1997 Wyeth introduced what is described as a Blanket Order system of ordering in order to cut down on paperwork given the number of orders being placed from time to time A letter from Wyeth dated 29th January 1997 announcing the introduction of this new purchasing system stated that the normal purchasing terms and conditions would continue to apply and then stated that the Blanket Order should not be interpreted as a firm commitment by WMI to purchase the authorised quantity stated in the Blanket Order You may only produce and deliver the stated call off quantities pages 9 10 Mr Fox was also referred to a further development in purchasing arrangements which was introduced in January 2000 This is what has been referred to as the two month firm window In effect there would be a six month forecast given of anticipated orders going forward but there would be a two month firm window the latter being what Dakota could actually manufacture and that Wyeth guaranteed to take and pay for The forecast six month period was merely indicative and Wyeth had no obligation to purchase on foot of it In April 2000 a document was sent by Wyeth entitled Standardized procedures for vendors and this set out the new arrangements relating to Firm period and Forecast and other matters which would form the basis for the purchasing arrangements with all Wyeth suppliers and not just Dakota Under the paragraph headed Forecast it states The forecast period is for the following four months of the schedule Vendors should use the Schedule period to forecast for base material for periods outside of the Firm Period This period can be used by supplier to produce hold stock but WMI is not liable for any stock outside the firm period that does not have a purchase order While Mr Fox acknowledged that this document existed he again stated that from a practical point of view it was not possible to operate strictly in accordance with it because of the lead time needed to buy in raw material from board manufacturers The two month window would not give sufficient lead time page 10 More importantly when he came to what he described as his conclusions the learned judge said Nothing was ever written down and each order constituted a contract for the delivery of the stipulated goods Business gradually increased through 1995 to 1998 when just less than two million euro worth of business was transacted again just on an order by order basis page 29 In 1996 as we know Dakota had at first failed to win a tender for the Wyeth business at that time On the 14th February 1996 a letter was received from Mr Slater indicating that the business was to be transferred to a new supplier but he also indicated that the business would be transferred over a mutually agreed period of time and he then thanked Dakota for its support in the tendering process whatever that meant and also expressed appreciation for the long standing association between the two companies In my view taking a snapshot of the relationship between the two companies at that time there was no obligation upon Wyeth to give any notice to Dakota and anything contained in that letter was a voluntary gesture on the part of Wyeth Perhaps indeed it suited Wyeth to transfer the business gradually to its new suppliers rather than to have the changeover take place overnight In any event it was expressed in the way that appears in the letter but I cannot see how that letter can constitute anything in the way of a binding commitment that at any future time at which the relationship might be terminated the transfer of business to any new supplier would be undertaken in a timeframe to be mutually agreed between the parties It could not amount to that and I am satisfied that no form of estoppel can arise therefrom If there is to be a term of reasonable notice implied into the relations between the plaintiff and the defendant it cannot in my opinion arise by virtue of that letter pages 29 30 I am satisfied that the level of the relationship as of that time was of a character similar to many a business relationship of 5 years standing In any walk of life business comes and goes It can go for any number of reasons or for no reason other than someone s whim or a simple desire for change and no notice may be required to be given in these circumstances unless there is an express term to the contrary Nevertheless the law has recognised that in some circumstances reasonable notice of termination must be given even where there is no such term expressed in any written contract between the parties I have been referred to a number of such cases each of which is different in terms of the type of relationship existed between the parties and there is certainly no case to which I have been referred which is on all fours with the present case though there are some similarities in some of the cases But the fact that the court will imply terms in certain circumstances is well settled page 30 Having referred to the judgment of Murphy J in Sweeney v Duggan 1997 2 I R 531 he continued on page 29 Having referred to the said officious bystander he went on to say that in addition to the sort of case in which the parties would say Oh but of course there was a variety of cases in which a contractual term would be implied not on the basis of the presumed intention of the parties but deriving from the nature of the contract itself and referred to Lord Wilberforce s description of the different categories as no more than shades on a continuous spectrum I take this to mean that the range of cases or the variety or kinds of cases in which a term will be implied is not confined in any way and that there is vested in the court a wide discretion as to when it shall regard it as reasonable to imply a term such as a reasonable notice term I say this because a feature of the present case and an unusual feature is that in spite of the very large volume of business transacted by Wyeth with Dakota and of the very substantial investments both in terms of money premises plant and machinery and personnel no long term or even medium term supply agreement was ever entered into between Dakota and Wyeth Such an agreement would be of more benefit to Dakota than to Wyeth but one cannot say that it would not have been of some benefit to Wyeth also since they had a dependence on Dakota which was recognised albeit in a somewhat negative way by Ms Todd at the backend of 2002 when she embarked upon an examination of the risk to Wyeth of this dependency page 32 He continued at page 32 The question now is whether the relationship which developed between Wyeth and Dakota during and after 1998 changed things in such a way as to bring that relationship which was an evolving one into that category of relations which the law has recognised as capable of having implied therein a term that it will not be terminated other than on the basis of reasonable notice being given The following step in the reasoning is crucial and merits full citation At page 32 33 Peart J said In 1997 1998 there was a development in the evolution of the relationship between Wyeth and Dakota New products were being launched by Wyeth and very substantial quantities were expected I am satisfied that Wyeth wanted Dakota to supply these anticipated increased volumes if it had the capacity This accounts for Mr Slater speaking to Dakota at the time about moving its operation to an upgraded and larger premises if it wanted to be a major player in the packaging industry There is no doubt also that Dakota was an ambitious company anxious to expand its business and it goes without saying that it would jump at the chance of supplying Wyeth with the sort of quantities which were being talked about Dakota had other customers which a new premises and upgraded facility would also benefit But I am satisfied that a very close relationship had developed between these two companies by this time and without going so far as to say that Dakota was induced by Wyeth to invest so heavily in new premises and equipment it was clear that if that was done the new business would come their way It was certainly a benefit to Dakota but it was also a benefit to Wyeth who now had a local supplier who could satisfy its requirements both as to reliability of supply and as to quality of product Both of these factors are of critical importance to Wyeth given the business it is in This is borne out by the evidence given by Wyeth As we now know the new levels of business did come Dakota s way and in fact the forecasts were exceeded But while I am not saying this close cooperation and encouragement by Wyeth to invest created of itself some sort of contractual relationship it was a very significant factor in the development of the overall relationship between the parties and a factor which I must take into account when considering the nature of the relationship between the parties I prefer to use the phrase nature of the relationship between the parties because the use of the word contract is confusing in this case because as Mr Murray was at pains to point out there never was any contract in existence except each individual order of specific goods from time to time and perhaps the commitment to purchase those goods specified in the firm window in the forecasts given by Wyeth But to confine myself to that contract is to ignore essential aspects of the overall relationship and would fail to recognise what Murphy J was referring to in Sweeney v Duggan when he stated that there are a variety of cases in which a contractual term will be implied on the basis not of the intention of the parties but deriving from the nature of the contract itself I refine this a little bit further for the purpose of this case by stating that it ought also to be derived from the nature of the relationship of the parties as in the present case I accept that for a term to be implied it must not just be reasonable but must also be necessary In addition I am satisfied that a term cannot be implied simply because one party considers that in all the circumstances it would be fair to them It must also be capable of formulation with reasonable precision That much is clear from the English authorities and from Sweeney v Duggan Later on the same page he continued But in relation to the development of the relationship from 1998 I have absolutely no doubt that both parties would have regarded the giving of reasonable notice as a desirable thing had it been discussed I do not have to state why Dakota would regard it as desirable because that is obvious But as far as Wyeth is concerned they were also putting themselves in a position of some dependency on Dakota This was not seen as risky at the time but there was risk That risk was appreciated by September 2002 as we know In fact I find it extraordinary that the matter was not brought up for discussion by Dakota either of their own motion as it were or on the prompting of their Bank or even their auditors However that was the situation Dakota either closed their minds to the possibility of peremptory termination or worked on the assumption that everybody would be decent about things when and if that situation arose While Wyeth have said that they would never agree to enter into any long term supply agreement with a supplier and do not in fact do so that is not the same as saying that they would never agree to reasonable notice of termination The fact that they do not have long term supply agreements with their suppliers does not prevent this court from finding that a term of reasonable notice is capable of being implied At a later stage he gave further consideration to the grounds on which a term may be implied He considered that would be fair to both parties and also reasonable He said that it was necessary to give business efficacy to the relationship after 1998 He also spoke of giving business efficacy to the arrangements between the parties I have quoted at such length because it is necessary to understand what exactly the learned trial judge decided It is perfectly clear in my opinion that the learned trial judge held that there was never at any time an agreement or a contract between the parties other than individual purchase and sale contracts Mr Gardiner in seeking to explain what was from his point of view a very stark finding that no long term or even medium term supply agreement was ever entered into between Dakota and Wyeth sought to argue that the judge was merely referring to the absence of a written agreement However that is not what he said and there is nothing in the immediate context of this statement to suggest that the judge was making such a qualified statement Other of the passages quoted above show the learned trial judge studiously even elaborately avoiding the use of the word contract or agreement I cannot agree with Mr Gardiner s submission that the learned trial judge held that there was a contract He preferred quite expressly to use the phrase nature of the relationship between the parties because as he said the use of the word contract is confusing in this case Even in the passage where he cited Murphy J on the question of implying terms into contracts he felt it necessary to refine that dictum by stating that it ought also be derived from the nature of the relationship of the parties Accordingly I am satisfied that the learned trial judge was very careful even deliberate in his use of language It was not as suggested by Mr Gardiner ambiguous He may have been mistaken in the legal conclusion he drew but that is a different matter Furthermore it was quite consistent with the evidence and with the comments made by the learned trial judge on it that he should come to this conclusion The case as originally pleaded and presented by Dakota was that the agreement was made in October 1993 at the outset of the dealings between the parties As we have seen the learned trial judge rejected that contention holding that each order constituted a contract for the delivery of stipulated goods Next at the hearing Dakota relied on a letter written by Wyeth in 1996 in a very particular context Dakota had been required to engage in a tendering process if they were to continue supplying Wyeth Initially Dakota lost out in this process in favour of other suppliers They were able however to persuade Wyeth to reverse this decision because the competing tenders had been submitted on an incorrect basis which had distorted the process The important point was that in the intervening period when Dakota were going to lose the business Wyeth wrote a letter to Dakota as follows We refer to your recent tender submission in regard to our folding carton business in Ireland and the UK Regretfully your tender has not been successful in this instance The Preferred Supplier status has been awarded to a limited number of companies for our carton business It is our intention to transfer business over a mutually agreed period of time This letter became a major plank in the evidence of Mr Tony Fox on behalf of Dakota He maintained that it demonstrated that Wyeth had agreed to adopt some form of mechanism of termination Again as already seen Peart J rejected this contention He could not see how the letter could constitute anything in the way of a binding commitment Dakota had to depend on the evidence of Mr Fox if it were to establish the existence of a binding agreement Mr Fox expressly agreed that Dakota did not have a long term supply agreement with Wyeth Curiously he maintained nonetheless that they had a long term contract He was pressed repeatedly on this point in cross examination A representative answer would be the following We did not have an agreement in written format In the spirit of the working relationship that existed form 1993 it was our firm belief that there was an agreement between Dakota Packaging and Wyeth and that then least that we would have

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/c626e7d8ae86ccc280256f6b005240e8?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • should have considered and made findings on the following matters a Whether it was possible to remove the sums of money in question from the company over a two year period b What mechanism could be used for extracting such funds c What would the commercial effects of the extraction of the funds on the viability and future of the business and d What would be the tax effects of the extraction of the funds 11 He stressed that he was not submitting that the learned trial judge should have made a determination as to the most commercially and fiscally effective method of extraction and enforced that on the husband and the companies But he said that the relevant taxation and commercial matters should have been addressed to the extent set out under the four headings above Such a course he said would have rendered it more likely that a sum which would represent proper provision for the husband as well as the wife would have emerged and would also have facilitated any future adjustment necessary 12 Mr Durcan particularly emphasised that both parties were agreed and the learned trial judge found that the husband would continue to run the business Indeed in no other way could he confidently have made the payments ordered or provided for himself and so far as necessary for the couple s now adult children in the standard to which the parties have become accustomed Respondent s submissions 13 For the wife Mr David Hegarty S C firstly pointed out that the learned trial judge had in fact heard considerable evidence on the taxation and the commercial consequences of extraction of large sums of money from the company There was a considerable measure of conflict in this evidence Mr Hegarty conceded that it would have been ideal if the learned trial judge had said what view he took of those matters He conceded that the learned trial judge appeared to jump from the topic of how the money was to be extracted without making any finding on it to the amount of money he actually ordered Mr Hegarty said however that the learned trial judge simply left it up to the husband to perform the extraction in the most fiscally and commercially effective fashion 14 Mr Hegarty submitted that the learned trial judge had been right to give no consideration to the tax implications of the provision This was so he said because the wife had lost her case to an equity in the company Accordingly said Mr Hegarty to fix the lump sum to which she was entitled wholly or partly with reference to the tax liabilities of the husband or the company would deprive her of the benefit of having lost the partnership claim In any event he submitted the process of forming a view about the tax and commercial consequences of extraction is simply too complicated It would ask too much of trial judges They would be compelled in effect to take commercial decisions This is antipathetic to the fundamental principles of family law which Mr Hegarty submitted come down to value judgments Mr Hegarty did not conceal that he was contending for a broad brush approach to the matters which by virtue of s 16 of the Act of 1995 the Court must have regard It would be particularly inequitable in this case to adopt a more precise approach Since the wife had lost her claim to equity in the company she should not be troubled by any consideration of the husband s or the companies tax or commercial risks and liabilities All these said Mr Hegarty were the husband s problem Decision on tax and associated issues 15 I entirely agree with the learned trial judge that it is not for the Court to stand in the shoes of a taxation adviser to the husband in the post litigation situation Indeed on this appeal it is not submitted that the Court should do so but merely that it should for the reason set out above make findings of the sort proposed by the appellant husband I note that a considerable amount of evidence was heard on this topic From this it emerged that the likely tax payable on the payment of the lump sums could vary between 20 and 42 i e a sum of between 800 000 and 1 680 000 These are clearly very substantial sums in the context of the total worth of the parties Moreover they make no account of the commercial costs of realising them on top of the basic sum of 4 million on which they are computed 16 In my view these sums are simply too significant to be dealt with simply by according the husband total flexibility in raising them This indeed might be more aptly described as simply imposing no additional constraint on him in doing so 17 If one envisages that instead of a possible tax liability of up to 1 680 000 there were some other liability in that maximum amount it would plainly be unjust for the Court not to take it into account If either the husband or the company had personal or commercial debt which might amount to that sum there is no conceivable basis in which it could be excluded from consideration having regard for example to the terms of s 16 i which requires the Court to consider inter alia a The income earning capacity property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future b The financial needs obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future whether in the case of remarriage of the spouse or otherwise 18 In T v T 2002 3 IR 334 at 415 Fennelly J said The parties accept also that in order to make provision in the form of a lump sum for the wife in

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/5b347724cfa497aa80256f6400536546?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • Appeal The appellant has appealed against the findings and determination of the High Court The grounds of appeal were as follows 1 The learned High Court Judge erred in law and or in his discretion in proceeding to hear the appeal by way of case stated when the appellant was not legally represented 2 The learned Judge erred in law in the holding that the District Court was entitled to hold that there was evidence upon which it could be satisfied that the offences for which extradition was sought were offences within the United State of America on the 18th January 2002 3 The learned Judge erred in law in holding that the District Court was entitled to hold that such offences were not revenue offences 4 The learned Judge erred in law in holding that the District Court was entitled to hold that the limitation period for the conspiracy charges ran from the date of the last alleged act and in holding that the District Court was entitled to hold that the appellant had not become immune from prosecution 5 The learned Judge erred in law in holding that the District Court was entitled to hold that the United States Courts comply with the rule of specialty 6 The learned Judge erred in law in holding that the District Court was entitled to hold that the offences the subject of the extradition application were corresponding offences with any offences in this state 7 The learned Judge erred in law in holding that the District Court was correct to hold that the Statutory Instrument 474 2000 applied Part II of the Extradition Act to the United States 8 Such further on other grounds as may by leave of this Court be argued 6 New Grounds of Appeal At the commencement of the appeal Mr Michael Forde S C counsel for the appellant sought to adduce new grounds of appeal I am satisfied that new grounds of appeal should not be considered by this Court for two reasons First this is an appeal on a case stated from the District Court The facts were found by the District Court On these facts at the request of the appellant the District Court has sought an opinion on matters of law This form of appeal proceeds on the terms set by the District Court Secondly there is a general jurisprudence from which there are a few exceptions that new issues will not be argued on an appeal Issues are required to be argued first before and decided upon by a trial judge It is then for an appellate court to consider the facts and law on appeal There is a discretion whereby an appellate court may consider new issues in special circumstances However as this case is not an appeal in the usual form from the High Court these proceedings are by way of case stated pursuant to the provisions of the Summary Jurisdiction Act 1961 as amended and extended by s 51 of the Courts Supplemental Provisions Act 1961 this jurisprudence does not apply This form of appeal was chosen by the appellant at a time when he had legal representation The issues on appeal are of law not fact The issues of law were determined by the District Court In all the circumstances of this case I am satisfied that the court does not have jurisdiction to consider additional issues Consequently this appeal should be heard and determined within the terms of the case stated by the District Court 7 Revenue Offences The appellant raised seven issues of law on the notice of appeal to this Court However at the hearing before this Court counsel stated that the ground relating to Revenue Offences was not being pursued 8 Legal Representation As to the first ground that the High Court erred in law and or in its discretion in proceeding to hear the appeal by way of case stated when the appellant was not legally represented I would confirm the determination of the High Court The appellant had had a series of legal representatives The High Court held While the appellant appeared before this court in circumstances where he was unrepresented this arose due to the fact that he has discharged three solicitors since this matter was before the District Court I am satisfied that these circumstances arise of the appellant s own making and the case before this Court was adjourned at a stage when it was due for hearing to enable him to instruct his third firm of solicitors At the stage the matter came before this Court the appellant informed this Court in the presence of his solicitor that he had discharged him of his services In those circumstances I was satisfied that this Court should not tolerate a situation where the case was unduly prolonged by the actions of the appellant himself I would not intervene in the exercise of the discretion and the decision of the High Court I would dismiss this ground of appeal 9 Specialty 9 1 The appellant raised the issue of specialty The case stated set out the evidence adduced at the hearing in the District Court This included the following ii Mr Adams identified the United States Federal Sentencing Guidelines shown to him by Mr McGuinness He agreed that the Federal Sentencing Guidelines bind federal judges in sentencing defendants He also agreed that the said Guidelines permit judges to take into account uncharged conduct when sentencing defendants so that a defendant might be punished for offences with which he was never charged He stated that the sentencing guidelines provided for a base offence level and that the Court then examined the conduct for characteristics of the offence which could move the level upwards thereby attracting a greater sentence However the sentence could not exceed the statutory maximum for the offence He agreed that the relevant conduct to be considered by the court under IA of the sentencing guidelines included unindicted bad conduct He further agreed that matters which must be taken into consideration by a sentencing court under IB of the sentencing guidelines included similar fact offences and loss attributable to unindicted conduct He agreed that although the Attorney General was not seeking an order for the appellant s extradition on counts 16 to 26 inclusive of the indictment the conduct charged in those counts could in fact be taken into consideration by a federal court sentencing a defendant in a criminal case Mr Adams did not know if the rule of specialty would apply to a case in which the defendant had been extradited from another jurisdiction so as to prevent this occurring He was not familiar with the manner in which the Federal Sentencing Guidelines are applied in cases such as the present A copy of the decision of the United States Federal Court of Appeal for the Circuit in US v Andonian was shown to Mr Adams by Mr McGuinness Mr Adams stated that he was not familiar with the case but it appeared to relate to a number of men from Uruguay who were extradited to the United States from Uruguay a county whose extradition treaty with the United States apparently contained a specialty clause Despite this however 12 new counts were added to the indictment after the men arrived in the United States and this was upheld by the Federal Court of Appeals for the Circuit Mr Adams was also shown a copy of the decision of the Court of Appeals for the 9th Circuit in the case of US v Lazarevich which involved an extradition from the Netherlands to the United States Again the extradition treaty between those two countries appeared to contain a specialty clause similar to that contained in the treaty between Ireland and the United States Mr Adams agreed that the case appeared to permit the federal sentencing judge to take into account conduct and in particular abduction in respect of which Mr Lazarevich had not been extradited and his sentence was thereby increased accordingly A copy of the decision of the US federal Court of Appeal for the 5th Circuit in US v Labaron was also shown to Mr Adams He agreed that it appeared to relate to that defendant s extradition from Mexico to the United States in respect of a count of conspiracy to commit murder and one other count It would appear that the Mexico United States extradition treaty contained a specialty clause but this did not prevent Mr Labaron being tried for a second conspiracy charge in respect of which he had not been extradited and this was upheld by the 5th Circuit Court of Appeals Mr Adams pointed out that none of the above cases were from the 4th Circuit Court of Appeals which was the court governing West Virginia and he did not know what the law in West Virginia was in relation to the application of the rule of specialty in this regard He admitted that the only court which could overturn the above decisions was the United States Supreme Court and he did not know if any of the above cases had been appealed to the Supreme Court He noted however that in the Andonian case a cert was denied which meant that the Supreme Court had declined to hear the case a fact to which no significance could be attached Upon being directed by Mr McGuinness to the various counts in the indictment he agreed that in many places the expression including but not limited to was used Examples of where this occurred included page 23 Patients including but not limited to patients JH AW PW and VL He also agreed that at the appellant s trial other claims concerning other patients would be introduced in evidence 9 2 The District Court Judge dealt with the issue of specialty by holding that the questions raised by the appellant did not go far enough and he was satisfied that the rule of specialty applied in the case and that the appellant s rights in this regard are enshrined in the laws of the U S A and that he could apply to court to remedy any breach of his rights in this regard However the District Court was of the opinion h That it is appropriate for to sic court to State that under section 26 of the Act the Minister has a function in the process in that he might draw the attention of the Requesting State to the issue of the Defendant being exposed to greater penalty in the requested State than that applicable in this jurisdiction or indeed other matters as referred to herein as mentioned in the decision of Goff L J in the case known as Nielsen 1984 79 Cr App R 1 It appears that the reference to s 26 is a misprint as s 26 relates to the warrant of arrest procedure It is more probable that the District Court was referring to s 20 which relates to the rule of specialty 9 3 Ambit of Appeal The parameters of this appeal are governed by the terms of the case stated The applicant chose this form of appeal over other possible forms of appeal at a time when he was legally represented The appeal is confined to the statutory scheme provided for this type of appeal There are other forms of appeal available which are usually more suited to the types of issues which arise in an appeal on an extradition application This is an appeal on a point of law Section 2 of the Summary Jurisdiction Act 1857 as amended by s 51 1 of the Courts Supplemental Provisions Act 1961 provides After the hearing and determination by a Justice of any proceedings howsoever heard and determined other than proceedings relating to an indictable offence which was not dealt with summarily by the Court either party to the proceeding before the said Justice or Justices may if dissatisfied with the said determination as being erroneous in point of law apply in writing within fourteen days after the same to the said Justice or Justices to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court and such party hereinafter called the appellant shall within three days after receiving such case transmit the same to the Court first giving notice in writing of such appeal with a copy of the case so stated and signed to the other party to the proceeding hereinafter called the respondent This form of appeal requires that the case be stated by the District Court The form of the case stated was described by Murphy L J in Emerson v Hearty 1946 NI 35 at pp 36 37 as follows The case should be stated in consecutively numbered paragraphs each paragraph being confined as far as possible to a separate portion of subject matter After the paragraphs setting out the facts of the case there should follow separate paragraphs setting out the contentions of the parties and the findings of the Judge The case should set out clearly the Judge s findings of fact and should also set out any inferences or conclusions of fact which he drew from those findings What is required in the case stated is a finding by the Judge of the facts and not a recital of the evidence Except for the purpose of elucidating the findings of fact it will rarely be necessary to set out any evidence in the case stated save in the one type of case where the question of law intended to be submitted is whether there was evidence before the Judge which would justify him in deciding as he did The point of law upon which this Court s decision is sought should of course be set out clearly in the case But we think the Judge is certainly entitled to expect the party applying for the case stated to indicate the precise point of law upon which he wishes to have the decision of the appellate Court It would be convenient practice that this should ordinarily be done in the written application for the case stated This was applied in Mitchelstown Co Operative Agricultural Society Ltd v Commissioner for Valuation 1989 IR 210 by Blayney J I also adopt and apply this statement of the law In this case stated the judge set out the evidence adduced at the hearing He did not expressly find the facts This is unfortunate Consequently the findings of fact are to be inferred from the evidence adduced This is not a preferred way to state a case However in this case where there was no conflicting evidence it is an approach which while not that preferred is open to the Court Foreign Law This Court is bound by the facts found by the District Court as set out in the case stated Because of the format used by the District Court this is not as clear as it might be This is an added complication to the case The issue of foreign law is a fact to be found by the District Court The District Court set out the evidence adduced as stated previously in this judgement There was evidence before the District Court Judge from which he could find facts as to the foreign law The District Court did make a decision on the issue of specialty grounded on the facts stated The evidence adduced included that in sentencing the appellant the Courts of the United States of America could take into account uncharged and unindicted conduct and that although the Attorney General was not seeking an order for the appellant s extradition on Counts 16 26 of the indictment the conduct charged on these counts could be taken into consideration by a federal court sentencing the appellant Mr Adams did not know if the rule of specialty would apply to a case in which the appellant had been extradited from another jurisdiction so as to prevent this occurring He was not familiar with the manner in which the federal sentencing guidelines are applied in cases such as this However the sentence could not exceed the statutory maximum for the offence There were no conflicting experts giving evidence on the foreign law The evidence adduced was the evidence given by Mr Robert Adams Foreign law is a fact to be determined by the District Court In this case the District Court set out the evidence of Mr Adams and I infer that it was accepted and thus the factual evidence in the case Documents The case stated is a form of appeal where the facts found in the District Court should be set out clearly in the case stated followed by the determination of law This should then be followed by the question or questions of law to be decided on the appeal As foreign law is a matter of fact it is for the District Court to determine While Counsel very helpfully made available the United States Federal Sentencing Guidelines and case law these are not in the same position as the issue of Irish Law I am not in a position to consider the law of the United States as the fact of that law has been determined by the District Court I must take the facts as determined This appeal is based on the findings of fact of the District Court Legal determinations must be made on those findings of fact Indeed in posing the case stated on the point of law the District Judge said whether upon the foregoing facts I was correct in law Irish Law on Specialty The Irish law on specialty is to be found in s 20 of the Extradition Act 1965 It provides 20 1 Extradition shall not be granted unless provision is made by the law of the requesting country

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/c1e15a9996a3e40780256f62004e65b5?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • satisfied that each of the offences charged in Warrants C D F and G herein correspond with offences in this jurisdiction as of the date of production of the Warrants to the Assistant Commissioner in January 2002 as submitted by the applicant I therefore grant the order sought in respect of those Warrants only but not in respect of Warrants A B and E namely for the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the Metropolitan Police London being the police force for the place in which the Warrants have been issued for conveyance to that place and I remand him in custody until he is so delivered 5 On this appeal there is a net issue in relation to three warrants The High Court held that the applicant could not simply refer to the provisions of s 21 2 of the Misuse of Drugs Act 1977 and make out correspondence in relation to the supply charges in the warrants The High Court stated that The Minister may or may not have made such regulations and it is a matter for the applicant to satisfy the court that such regulations have been made and are still in force and that this had not been done Thus the issue raises the matter of the relevant Irish law and the duty of counsel for the applicant to prove and provide and the duty of the learned trial judge to inquire as to the Irish law relevant to the offences 6 No issue arises on the facts as set out in the warrants from the United Kingdom These facts are clearly stated and it is on them that an Irish offence falls to be identified or not The issue before the court is the identification of the Irish Law relevant to the facts so as to determine if there is correspondence 7 In the High Court there was correctly reference to s 5 and s 21 2 of the Misuse of Drugs Act 1977 These Sections provide Section 5 1 For the purpose of preventing the misuse of controlled drugs the Minister may make regulations a prohibiting absolutely or permitting subject to such conditions or exceptions as may be specified in the regulations or subject to any licence permit or other form of authority as may be specified iii The supply the offering to supply or the distribution of controlled drugs Section 21 2 Any person who whether by act or omission contravenes or fails to comply with regulations under this Act shall be guilty of an offence No regulations were opened or handed to the learned trial judge nor was the making of any regulations formally proved The trial judge himself stated that the Minister may or may not have made such regulations On this appeal counsel for the applicant referred this court to the Misuse of Drugs Regulations 1988 S I No 328 1988 and in particular to

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/3f358e3c9cfcc50b80256f62004ee829?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive