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  • Dean Teagmhail Linn English Eolas faoin gCúirt Comhaltaí na Cúirte Breithiúnais Oifig na Cúirte Uachtaraí An Córas Dlíthiúil Leabharliosta Naisc Bunreacht na hÉireann Cuardaigh breithiúnais de réir bliana 2014 2010 05 06 2010 Ó Murchú v An Taoiseach chuid eile

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  • Córas Dlíthiúil Leabharliosta Naisc Bunreacht na hÉireann Cuardaigh breithiúnais de réir bliana 2014 2010 2001 04 04 2001 Ó Beoláin v Breitheamh na Cúirte Dúiche Mary Fahy chuid eile 04 04 2001 Ó Beoláin v Breitheamh na Cúirte Dúiche Mary

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  • breithiúnais de réir bliana 2014 02 27 2014 Ó Maicín v Éire chuid eile 02 27 2014 Ó Maicín v Éire chuid eile 02 27 2014 Ó Maicín v Éire chuid eile 02 27 2014 Ó Maicín v Éire chuid eile 2010 05 06 2010 Ó Murchú v An Taoiseach chuid eile 2001 04 04 2001 Ó Beoláin v Breitheamh na Cúirte Dúiche Mary Fahy chuid eile 04 04 2001

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  • Dean Teagmhail Linn English Eolas faoin gCúirt Comhaltaí na Cúirte Breithiúnais Oifig na Cúirte Uachtaraí An Córas Dlíthiúil Leabharliosta Naisc Bunreacht na hÉireann Cuardaigh breithiúnais de réir bliana 2014 2010

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  • Judgments The Supreme Court Office The Legal System Publications Links Constitution of Ireland Judgments of the Supreme Court Search Judgments by Year Advanced Search Latest Judgments Important Judgments Article 26 References Search Judgments by Year 2016 2015 2014 2013 2012

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  • no cross appeal against that finding 13 The trial judge then referred to the Respondent s claim for such further and other relief as to the Court should seem meet and indicated that he proposed to consider and apply it notwithstanding the protest by counsel for the Appellant The trial judge made it clear that he considered that there was nothing that had not been dealt with fully and comprehensively in the evidence He rejected the contention that the Appellant could not deal with the case or could not deal with the evidence that had been given or that the Court had not been given enough information from which he could make a fair assessment of the value of the services rendered by the Respondent 14 In relation to that claim for relief the trial judge went on to state that he was going to reach his own conclusion as to the value of the Respondent s services He continued I do believe while they were not as significant or as far reaching as he himself believes they were nonetheless of considerable value to the Appellant particularly in the early stages I propose to assess the value of those services at 75 000 and give a decree for that sum together with costs Earlier the trial judge had outlined the Respondent s view of his contribution to the Appellant as follows The Respondent on the other hand took the view I have added great value to this project I have introduced Neil McCann to it I have also introduced DNG and I have introduced Tony Forte I have made a significant ongoing contribution No evidence whatsoever independent expert or otherwise had been adduced at the hearing as to the scope of the benefit which had flowed to the Appellant from and was attributable to the services which had been provided by the Respondent to the Appellant or to put a monetary value on that benefit The appeal 15 As has been noted earlier on the appeal the Appellant seeks to have so much of the judgment of the High Court as made an award of damages on a quantum meruit basis discharged The grounds on which it is alleged that the trial judge erred in law and in fact or on mixed questions of law and fact in reaching that conclusion are set out comprehensively in the Appellant s notice of appeal Those grounds on the basis of the submissions made on behalf of the Appellant may be subsumed into the following arguments a that a claim by the Respondent based on the principle of quantum meruit formed no part of the Respondent s claim as pleaded as particularised or as opened to the High Court on the hearing b that there was no evidence of the value attributable to the services the Respondent contended that he provided to the Appellant before the High Court there being no witnesses on that matter and no opportunity to cross examine c that there was no evidence of the benefit which was alleged to have accrued to the Appellant from those services before the High Court and in particular no evidence that such benefit accrued to the Appellant personally as distinct from the Appellant s group of companies and d that the issue of granting relief on a quantum meruit basis was raised by the trial judge and neither party invited him to determine the claim on that basis What flows from those submissions is that it is contended that in the course of the hearing in the High Court the Appellant and his counsel were taken by surprise there being two elements which gave rise to that situation that the pleadings did not contain a claim for an award on a quantum meruit basis and that the facts which might have underpinned a claim for an award on a quantum meruit basis and its quantification were neither pleaded nor part of the case in consequence of which no evidence was adduced in relation to those facts Pleading point 16 The starting point for the Appellant in outlining the legal position in relation to pleading was to quote the oft quoted passage from the judgment of Fitzgerald J in Mahon v Celbridge Spinning Co Ltd 1967 I R 1 which as stated by Keane J in McGee v O Reilly 1996 2 I R 229 conveniently and compendiously states the purpose of a pleading Fitzgerald J stated at p 3 The whole purpose of a pleading be it a statement of claim defence or reply is to define the issues between the parties to confine the evidence at the trial to the matters relevant to those issues and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings In other words a party should know in advance in broad outline the case he will have to meet at the trial Of course the consequence of the importance of pleadings in defining the issues between the parties as pointed out in Delany and McGrath on Civil Procedure in the Superior Courts 3rd Ed at para 5 32 is that a party will not be permitted to make a case that is materially different to its pleaded case unless leave to make an appropriate amendment in the pleadings of that party is obtained No opportunity was sought by the Respondent in this case to amend his pleadings to include a claim for damages based on quantum meruit or unjust enrichment Delany and McGrath cite the decision of the High Court Clarke J in Moorview Developments v First Active Plc 2008 IEHC 211 in support of that proposition Clarke J emphasised that when opening a case the plaintiff is confined to his or her pleaded case While counsel for the Respondent in their written submissions recognised that as being the law it was submitted that on any fair analysis of the case as pleaded and on the evidence the trial judge was entitled to assess the value of the work done and the services rendered by the Respondent on the basis that he did The reality in my view is that there was no objective evidence before the High Court by reference to which the trial judge was in a position to assess the value of the work done or the services rendered by the Respondent for the benefit of the Appellant 17 However in their submissions counsel for the Respondent went further It was submitted that the trial judge was entitled to determine the issue on a quantum meruit basis and to make the award he made notwithstanding that the Respondent had not pleaded or advanced in any way a claim based on quantum meruit In support of that contention counsel for the Respondent relied on a recent decision of this Court Duffy v Ridley Properties Limited 2008 4 I R 282 I consider that reliance on that decision is misconceived 18 In the commentary on the necessary contents of a statement of claim in Delany and McGrath op cit it is stated at para 5 42 that the statement of claim must contain a prayer for relief at the end setting out clearly the relief sought in summary form similar to that used in an endorsement of claim in a plenary summons However the authors point out that there are some reliefs that can be granted even if not specifically claimed As regards the relevant examples given it is stated that it is not necessary to specifically claim the relief of damages in addition to or in lieu of specific performance an inquiry in damages citing the decision in Duffy v Ridley Properties Limited The rationale for that aspect of the decision in Duffy v Ridley Properties Limited is to be found in the judgment of Finnegan J with whom the other judges of the Supreme Court concurred at para 62 There Finnegan J stated It is customary in the indorsement of claim and statement of claim in an action for specific performance as here to claim damages in addition to or in lieu of specific performance but also to claim as a relief if necessary an inquiry as to title and an inquiry as to damages It is not necessary to do so Special damages should be claimed and particularised in the statement of claim Prior to the Chancery Amendment Act 1858 the Court of Chancery in refusing to grant specific performance of a concluded agreement did so without prejudice to the right of the plaintiff to bring an action at common law for damages After the Act of 1858 the Court of Chancery and after the Judicature Act the High Court in refusing specific performance will proceed to consider the question of damages even where such question is not raised by the pleadings see Daniell s Chancery Practice 10th ed p 1134 and cases there cited In recent times at least the common practice for the court in refusing to award specific performance is to direct an inquiry as to damages see In re Greendale Developments Ltd No 3 2000 2 I R 514 That passage demonstrates that the exception to the general rule which arises where there is no express claim for damages in addition to or in lieu of specific performance has a clear statutory basis Further the practice of directing an inquiry as to damages ensures that the party seeking specific performance has an opportunity to address the issue of the quantum of damages on the hearing of the inquiry Nothing similar applies on or arises in this case 19 Indeed the Respondent s reliance on the decision in Duffy v Ridley Properties Limited and in particular the passage from the judgement of Finnegan J which was cited highlights an evidential deficiency in this case which clearly did not arise in Duffy v Ridley Properties Limited Finnegan J stated at p 75 I am satisfied that the trial judge was entitled to adopt the approach which she did She dealt with the matter on the basis of the evidence which the parties chose to adduce She rationalised clearly the basis upon which she assessed the evidence of the valuers each of whom gave oral evidence and were cross examined This court should not interfere with her finding In contrast as has already been noted there was no evidence adduced in this case of the value of the work done and the services rendered by the Respondent or the benefit which accrued to the Appellant on the basis of which the Respondent could be properly remunerated on a quantum meruit basis by the Appellant 20 The position adopted on behalf of the Appellant on the appeal was that it would be out of place to enter into a detailed exposition of the law relating to a quantum meruit claim when no such analysis took place in the court below On the other hand the line adopted on behalf of the Respondent was that the Respondent rendered services to the Appellant from which the Appellant had the commercial benefit and for which he continued to deny the Respondent recompense so that as I understand the argument the Appellant was thereby unjustly enriched Counsel for the Respondent then referred to the decision of this Court in Corporation of Dublin v Building and Allied Trade Union 1996 1 I R 468 as authority for the pre conditions for the application of the doctrine of unjust enrichment It is true that in the judgment of Keane J in that case it was found that Irish law recognises the principle of unjust enrichment although the case was decided on the basis of the principle of res judicata 21 In any event even if the Respondent could have advanced a claim on the basis of the equitable principle of unjust enrichment the reality of the situation is that he did not do so Such a claim would have had to be pleaded and evidence would have had to be adduced to support it and in particular to value the alleged unjust enrichment Neither was done Accordingly a submission that a claim based on unjust enrichment should succeed is just as flawed as the submission that a claim based on quantum meruit was properly addressed and determined by the trial judge 22 Returning to the pleadings in this case the claim for relief as pleaded by the Respondent in the pleadings before the High Court was for a specific sum 200 000 founded on the contention that the Appellant was contractually liable to the Respondent for that specific sum Relief on the basis of quantum meruit or unjust enrichment was not sought nor were the underlying facts relevant to the establishment of a claim for either such relief pleaded The consequence of the failure to plead those matters from the perspective of the Appellant was two fold First the Appellant did not have the opportunity to answer the claim for such relief by pleading matters which he would have contended disentitled the Respondent to such relief Secondly the Appellant not having any advanced knowledge that he would have to meet a claim for such relief at the trial of the action was not in a position to adduce the appropriate evidence to answer the Respondent s claim On an examination of the statement of claim as elaborated on by the replies to notice for particulars it is beyond question that the Respondent did not claim relief on a quantum meruit basis and did not plead the factual and legal foundation for entitlement to such relief That failure in my view should have been totally fatal to the advancement of a claim for such relief at the trial unless the Respondent had applied for leave to amend the pleadings the application had been acceded to and the Appellant had been afforded an opportunity to answer and to adduce the evidence necessary to address the amended claim That did not happen Therefore the Respondent s claim should not have been determined on the basis of a quantum meruit claim Lack of evidence 23 As a matter of fact there was no evidence before the High Court from which a reasoned decision could have been made as to the valuation of the quantum meruit to which the Respondent now contends he is entitled 24 Counsel for the Respondent referred this Court to the commentary on valuing the quantum meruit in Chitty on Contracts 31st Ed at para 29 077 which is addressed by reference to the decision of the Court of Appeal of England and Wales in Benedetti v Sawiris 2010 EWCA Civ 1427 In fact the most recent edition of Chitty on Contracts the 32nd edition deals with the topic at para 29 078 on the basis of the decision of the United Kingdom Supreme Court in Beneditti v Sawiris 2014 AC 938 Without going into the complexities of the commentary on that decision it is sufficient for present purposes to note that it was held that the value of the services which the claimant had provided should be assessed by reference to their market value There was no evidence before the High Court on the basis of which the market value of the services which the Respondent claimed he was entitled to be recompensed for by the Appellant could be assessed 25 The Court was also referred by counsel for the Respondent to a recent decision of the High Court Hogan J in Bergin v Walsh Ors 2015 IEHC 594 In that very complex case Hogan J was in a position to value the entitlement of the plaintiff an accountant on a quantum meruit basis for what was described as his significant input into the acquisition of coincidentally a property in France the assessment being based on 2 of the acquisition price of the property in question as set out in the judgment at paras 513 and 535 of the judgment That method of assessment could not be applied by analogy to the evidence which was before the High Court in this case 26 In support of the argument that it is open to this Court to let the trial judge s valuation of the quantum meruit in this case stand counsel for the Respondent pointed to the fact that the Respondent himself apparently valued the services he provided to the Appellant at 350 000 but was prepared to settle for 200 000 and that the figure arrived at by the trial judge 75 000 was minimalist and very conservative That argument does not stand up to scrutiny There was no evidence before the High Court on which the value of the quantum meruit could be properly assessed and there is no rational basis for the figure of 75 000 awarded to the Respondent against the Appellant 27 An alternative argument advanced on behalf of the Respondent was that if this Court were to accept the submission on behalf of the Appellant that there was inadequate evidence before the High Court by reference to which the quantum meruit could be valued the appropriate order for this Court to make would be to remit the matter to the High Court to have the value of the quantum meruit assessed The lack of relevant evidence in the High Court is attributable to the fact that the Respondent s claim was not pleaded as a claim for relief on a quantum meruit basis Therefore it would not be appropriate to remit the matter to the High Court Summary of conclusions 28 The approach adopted in the High Court of awarding the sum of 75 000 to the Respondent against the Appellant for services rendered on a quantum meruit basis was incorrect in that a neither a claim for such relief nor the matters which would have established an entitlement to it had been pleaded and b there was insufficient evidence before the High Court to arrive at a proper valuation of the quantum meruit even assuming entitlement to payment on a quantum meruit basis could be established In the light of those conclusions I would allow the Appellant s appeal THE SUPREME COURT Appeal No 219 2011 Denham C J O Donnell J Laffoy J BETWEEN MARK REYNOLDS PLAINTIFF RESPONDENT AND PAUL BLANCHFIELD DEFENDANT APPELLANT Judgment of Ms Justice Laffoy delivered on 4th day of February 2016 Introduction 1 This judgment relates to an appeal of the defendant appellant the Appellant against an order of the High Court of 6th April 2011 made by Kearns P the trial judge following a hearing on oral evidence The order recorded the finding of the trial judge that there was not a concluded agreement between the parties for payment of 200 000 00 It ordered that the plaintiff respondent the Respondent recover against the Appellant the sum of 75 000 and costs of the action when taxed and ascertained the trial judge having assessed the value of services delivered by the Respondent to the Appellant in the sum of 75 000 00 On the appeal the Appellant seeks an order discharging so much of the order as made an award of damages quantum meruit in favour of the Respondent There is no cross appeal by the Respondent against the finding that there was not a concluded agreement between the parties for the payment of 200 000 by the Appellant to the Respondent Accordingly the issue which arises on the appeal is whether the award in the sum of 75 000 in favour of the Respondent on a quantum meruit basis was made in error as the Appellant contends Peculiarly because of an absence of complexity in the procedures adopted and in particular in the manner in which the claim and the defence were pleaded it is necessary to outline what happened prior to the hearing on oral evidence in some detail Procedures pleadings 2 The Respondent s High Court proceedings were initiated by a summary summons which issued on 29th October 2008 The material statements in the special indorsement of claim on the summary summons for present purposes were as follows At the Appellant s request the Respondent rendered services to the Appellant assisting the Appellant with a significant property development in which the Appellant was involved at Chateau Jouarries Carcasonne sic France In and around November of 2006 within the jurisdiction of this Honourable Court the Appellant agreed that he would pay to the Respondent the sum of 200 000 00 in respect of services rendered by the Respondent to the Appellant and this payment was to fall due on the practical completion of this development The development was practically completed in and around September October 2008 and accordingly the sum due by the Appellant to the Respondent is now due and owing Despite request for payment and in breach of the agreement between the Respondent and the Appellant the Appellant has failed to pay the sum of 200 000 00 or any sum to the Respondent As the foregoing illustrates the Respondent was seeking only to recover a debt a liquidated sum in money upon a contract Accordingly the action was properly brought by way of summary summons in accordance with Order 2 of the Rules of the Superior Courts 1986 as amended There followed the Respondent s prayer for relief which in addition to a claim for judgment in the sum of 200 000 contained a claim for s uch further or other relief as this Honourable Court shall deem meet 3 The next procedural step which is of significance is that by order of the High Court McKechnie J made on 15th February 2010 it was ordered that an earlier order which had been made by the Master of the High Court on 19th January 2010 in which it had been ordered that the Respondent be at liberty to enter final judgment in the sum of 200 000 with interest from 1st November 2008 together with costs when taxed and ascertained be vacated The circumstances in which that order had been made do not bear on the issues on this appeal It was further ordered that the action stand adjourned to plenary hearing as if the proceedings had been commenced by plenary summons Directions were given in relation to delivery of pleadings 4 The Respondent s statement of claim was delivered on 5th March 2010 As was submitted by counsel for the Appellant on the hearing of the appeal it was in substance in similar terms to the special indorsement of claim on the summary summons The relief sought by the Respondent in the prayer for relief in the statement of claim was a verbatim replication of the relief sought in the summary summons judgment in the sum of 200 000 such further or other relief as to the Court should deem meet interest pursuant to the Courts Act 1981 and an order for costs 5 Subsequently a notice for particulars was raised by the solicitors for the Appellant The only aspect of the notice of relevance for present purposes is to be found in paragraph 1 in which particulars were sought of each request of the Appellant that the Respondent render services as pleaded in the statement of claim the particulars sought being the date the place and the circumstances of the request and the names of the persons present The response of the Respondent s solicitors as well as asserting that the position of the Respondent had been extensively set out in the affidavits already sworn in the proceedings that is to say the affidavits filed on the motion to the Master of the High Court and on the appeal against the Master s Order stated as follows As the Appellant well knows he and the Respondent were partners in exploiting the commercial benefit to be gained from the development at Chateau Jouarries Carcasonne sic France Both the Respondent and the Appellant engaged in whatever was necessary to ensure a successful outcome for this development and the Respondent attended site meetings meetings with the local Mayor and the Vendor The Respondent met with prospective investors such as Mr Conor Clarkson and the Respondent held meetings with prospective sales agents such as Tony Forte of Douglas Newman Good The Respondent had extensive meetings with prospective operators of the development Eurogroup and was involved in the negotiations of the contract with those operators The Respondent had numerous meetings and communications with the selling agents and was involved in the organisation of marketing campaigns including accompanying selling agents on site visits The Respondent was responsible for introducing the eventual funder of the contract and had numerous meetings with that funder Neil McCann 6 The Appellant s defence was delivered on 28th May 2010 It traversed all matters pleaded by the Respondent In particular it was denied that a the Appellant agreed that the Respondent would render services whether alleged or at all b the Appellant agreed to pay to the Respondent the sum alleged or any sum whether in respect of services as alleged or at all and c that the alleged sum or any sum was due and owing by the Appellant to the Respondent It was specifically pleaded that the Appellant was under no obligation legal or moral to make payment of the sum of 200 000 or any other payment to the Respondent 7 The delivery of the defence marked the end of the pleadings No reply was delivered on behalf of the Respondent The hearing 8 The hearing took place over two days on 5th and 6th April 2011 On the appeal counsel for the Appellant attached particular emphasis to the fact that when opening the case counsel for the Respondent identified the issue for the Court as a very net issue that is to say as to whether or not the Appellant owed the sum of 200 000 claimed by the Respondent Emphasis was attached to the fact that in opening counsel for the Respondent while outlining a joint venture agreement entered into by the parties in early 2006 under which the Respondent was to invest 750 000 in the French project which had fallen away specifically identified the agreement in respect of which the Respondent was then suing as an agreement under which the Respondent was to be paid 200 000 on completion of the development for services rendered The first day of the hearing was taken up with the opening and the evidence of the Respondent 9 At the commencement of the hearing on the second day the trial judge raised with the parties whether in the event that he was unable to be satisfied as to the definite terms of any agreement between the parties the parties were agreed that the matter could be progressed on a quantum meruit basis in which event the Court would have to decide what sum might be appropriate The unequivocal response of counsel for the Appellant was that he was not agreeing that the matter could be dealt with on a quantum meruit basis giving as a reason the way in which the matter had been pleaded and in essence that the Court was not in a position to deal with a quantum meruit based claim After a short recess the cross examination of the Respondent continued In the course of the cross examination the trial judge intervened as counsel for the Appellant emphasised pointing to the fact that the net issue upon which counsel for the Appellant insisted whether there was agreement reached between the parties was the only issue in the case the crucial issue being whether there was a discussion between the parties at which a buyout figure a valuation for services rendered up to that time was discussed and agreed and if so what was decided In the course of the intervention the trial judge stated that if counsel for the Appellant was indicating that he should not deal with the case on a quantum meruit basis then the trial judge simply would have to decide it on an all or nothing basis 10 After the intervention the cross examination of the Respondent was completed Two witnesses apart from the Respondent were called on behalf of the Respondent Mr Tony Forte and Mr Neil McCann both of whom were referred to in the reply to para 1 of the notice of particulars quoted above Following the completion of the case of the Respondent the Appellant then testified One other witness an external accountant and auditor in this jurisdiction for the Appellant s group of companies gave evidence on behalf of the Appellant 11 Thereafter the trial judge indicated that he was going to give his decision He indicated that the longer he had been listening to the case the more sympathy he had with both sides in the matter Indeed the evidence adduced in relation to the collapse of the property market in 2008 is conducive of sympathy for the parties Findings and decision of the trial judge 12 In his ex tempore judgment having outlined the evidence as to the relationship between the Respondent and the Appellant in relation to the development in France from its inception the trial judge focused on the position from late November 2006 and the alleged agreement pleaded and relied upon on behalf of the Respondent outlining the evidence as to the interaction between the parties in late November 2006 by e mail and otherwise He set out his conclusion as follows I am quite satisfied that this sum of 200 000 00 was mentioned by the Respondent because the Appellant accepts himself that it was mentioned But insofar as reaching a conclusion on the balance of probabilities that a concluded agreement was reached that that sum would be paid I am not satisfied on the balance of probabilities that any such agreement was made I think that what the Appellant has said to me strikes me as more probable that he would consider this alternative proposal of 200 000 00 even though he did not revert and nothing further was heard from the Appellant I am driven to that conclusion by the emails the contents of those emails that there was a buy off figure that the Appellant recognised that there would have to be some sort of settlement or deal But if a figure was mentioned and if he did not respond with a simply worded email I am of the view that the Appellant nonetheless recognised that he had to pay the Respondent something But I am not satisfied on the balance of probabilities that there was a concluded agreement that the sum should be 200 000 00 As has been outlined earlier there has been no cross appeal against that finding 13 The trial judge then referred to the Respondent s claim for such further and other relief as to the Court should seem meet and indicated that he proposed to consider and apply it notwithstanding the protest by counsel for the Appellant The trial judge made it clear that he considered that there was nothing that had not been dealt with fully and comprehensively in the evidence He rejected the contention that the Appellant could not deal with the case or could not deal with the evidence that had been given or that the Court had not been given enough information from which he could make a fair assessment of the value of the services rendered by the Respondent 14 In relation to that claim for relief the trial judge went on to state that he was going to reach his own conclusion as to the value of the Respondent s services He continued I do believe while they were not as significant or as far reaching as he himself believes they were nonetheless of considerable value to the Appellant particularly in the early stages I propose to assess the value of those services at 75 000 and give a decree for that sum together with costs Earlier the trial judge had outlined the Respondent s view of his contribution to the Appellant as follows The Respondent on the other hand took the view I have added great value to this project I have introduced Neil McCann to it I have also introduced DNG and I have introduced Tony Forte I have made a significant ongoing contribution No evidence whatsoever independent expert or otherwise had been adduced at the hearing as to the scope of the benefit which had flowed to the Appellant from and was attributable to the services which had been provided by the Respondent to the Appellant or to put a monetary value on that benefit The appeal 15 As has been noted earlier on the appeal the Appellant seeks to have so much of the judgment of the High Court as made an award of damages on a quantum meruit basis discharged The grounds on which it is alleged that the trial judge erred in law and in fact or on mixed questions of law and fact in reaching that conclusion are set out comprehensively in the Appellant s notice of appeal Those grounds on the basis of the submissions made on behalf of the Appellant may be subsumed into the following arguments a that a claim by the Respondent based on the principle of quantum meruit formed no part of the Respondent s claim as pleaded as particularised or as opened to the High Court on the hearing b that there was no evidence of the value attributable to the services the Respondent contended that he provided to the Appellant before the High Court there being no witnesses on that matter and no opportunity to cross examine c that there was no evidence of the benefit which was alleged to have accrued to the Appellant from those services before the High Court and in particular no evidence that such benefit accrued to the Appellant personally as distinct from the Appellant s group of companies and d that the issue of granting relief on a quantum meruit basis was raised by the trial judge and neither party invited him to determine the claim on that basis What flows from those submissions is that it is contended that in the course of the hearing in the High Court the Appellant and his counsel were taken by surprise there being two elements which gave rise to that situation that the pleadings did not contain a claim for an award on a quantum meruit basis and that the facts which might have underpinned a claim for an award on a quantum meruit basis and its quantification were neither pleaded nor part of the case in consequence of which no evidence was adduced in relation to those facts Pleading point 16 The starting point for the Appellant in outlining the legal position in relation to pleading was to quote the oft quoted passage from the judgment of Fitzgerald J in Mahon v Celbridge Spinning Co Ltd 1967 I R 1 which as stated by Keane J in McGee v O Reilly 1996 2 I R 229 conveniently and compendiously states the purpose of a pleading Fitzgerald J stated at p 3 The whole purpose of a pleading be it a statement of claim defence or reply is to define the issues between the parties to confine the evidence at the trial to the matters relevant to those issues and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings In other words a party should know in advance in broad outline the case he will have to meet at the trial Of course the consequence of the importance of pleadings in defining

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  • compliance with the terms of Condition 37 Smyth J found that there remained outstanding at that time certain formalities to be fulfilled He said at page 30 of his judgment What is required by the condition is that an agreement is made between Shell and Mayo County Council prior to development for the purpose of ensuring the restoration of the site when activity ceases The form and amount of the security to be given is to be determined by the Planning Authority There is no obligation requiring delivery of any specific amount by Shell or any other person Neither is a form of the documentation laid down in the condition He went on to say at page 31 of the judgment In my judgment the planning authority were entitled to agree to the form and amount of the security proffered They have agreed with Shell to accept the security its non completion is overtaken by events initially in December 2004 the Judicial Review proceedings In March 2005 these proceedings began and notwithstanding that the bulk of the complaints made were answered by replying affidavits in that month the complaints were allowed to stand on the Court file and not withdrawn for almost an entire year In my judgment the planning authority could have had no doubt as to what was required by the condition Thus Smyth J came to the conclusion that there was substantial compliance with the condition It was argued on behalf of Mr Sweetman that Condition 37 had to be complied with prior to development and that as the security was not lodged prior to the commencement of the development there was no compliance where the completion of the formalities had been put on hold I am satisfied having regard to decisions such as Mountbrook Homes Limited v Oldcourt Developments Limited and Conroy v Craddock 2007 IEHC 336 that notwithstanding the fact that a pre commencement condition requiring agreement between the developer and the planning authority on a particular issue has not been concluded but where there is subsequent agreement a court will not generally grant relief pursuant to s 160 of the Act Smyth J went on to say that even if he were wrong in his determination of fact and law as to Conditions 1 and 37 he would have exercised his discretion to refuse relief because of the hardship to Shell having regard to delay Leaving aside the fact that that conclusion is not the subject of appeal the observations of Smyth J as to the exercise of discretion have even greater force in circumstances where this appeal was lodged in the Supreme Court in April 2006 by Mr Sweetman and was allowed to remain dormant until the matter was listed in the list of uncertified cases at the direction of the Chief Justice The reliefs sought in these proceedings when commenced sought to prohibit the development of the Corrib Gas Terminal and the reliefs sought by him on this appeal included an order that any further works on the development be restrained Although Mr Sweetman stated in this appeal that he does not now suggest that a complete shut down should now be ordered it is important to remember that the primary reliefs sought by Mr Sweetman involve the prohibition of any works on the site and the restoration of the lands to their pre development state Given that Mr Sweetman was seeking such relief it was always going to be the case that an important factor in deciding whether or not to grant such relief would be the exercise of discretion by the trial judge Smyth J in the passage above referred to the fact that Shell had by the time the matter came before him expended very considerable sums of money and that the delay on the part of Mr Sweetman in prosecuting the proceedings before the High Court had the effect of very significantly increasing the financial loss that would be suffered if an order under s 160 had the effect of delaying the completion of the development At that time the development of the site was in the early stages However since the appeal was lodged Shell proceeded with and has now completed the development Thus the position on the ground has changed completely since the proceedings were before the High Court It must be remembered that injunctive relief is discretionary The granting of an injunction does not inevitably follow the finding by a court that there has been a legal wrong Injunctive relief is dependant on an analysis of where equity lies in the case Simons in Planning and Development Law observed at para 7 68 The equivalent section of the previous legislation had been described as a fire brigade section intended to deal with clear and urgent breaches the planning legislation As a general observation it seems to me that it cannot be appropriate for a party who sought injunctive relief under s 160 of the 2000 Act and was unsuccessful to lodge an appeal and then allow that appeal to lie dormant for a number of years This is even more the case where there was delay as found by the learned trial judge in prosecuting the proceedings before the High Court Given that relief under s 160 of the 2000 Act is discretionary in its nature it is inevitable that where delay has occurred the impact of an order restraining further development or in an appropriate case the demolition of a development found to be in breach of planning conditions is bound to be greater than it would have been had the proceedings been prosecuted with the urgency that underpins applications for such relief Therefore it is less likely that a court would be inclined to exercise its discretion in favour of an applicant for such relief who has delayed in prosecuting the proceedings or in prosecuting an appeal thereby increasing the hardship that would be caused to the other party Put simply the longer the delay in prosecuting the proceedings including an appeal such that greater hardship is caused to the party affected the harder it will be to persuade a court to exercise its discretion in favour of granting injunctive relief In this case Mr Sweetman allowed a period of some eight years to elapse while the appeal was pending From the point of view of Shell one can only begin to imagine the implications from a financial point of view if a court were minded to allow the appeal and grant the relief originally sought by Mr Sweetman That is to say nothing of the impact on employment and on the local economy in the area if such relief were to be granted The fact that the development has been completed in the meantime may explain why Mr Sweetman has said that he is now inviting the Court to make a determination that Condition 37 has not been complied with and allowing Shell an opportunity to comply with Condition 37 rather than seeking an order that the terminal be shut down To this extent it may be observed that Mr Sweetman recognises the uphill struggle he now faces by reason of the delay in prosecuting this appeal Other issues It is now the case that Shell have completed the formalities to give effect to the terms as to the form and amount of security agreed between Shell and Mayo County Council as long ago as December 2004 It is on that basis that it is contended by Shell that the completion of the formalities has rendered the appeal moot By way of response Mr Sweetman has argued that the Corrib Gas Terminal Reinstatement Agreement together with the guarantee furnished by Shell Finance Netherlands BV the parent company of Shell is not sufficient to meet the requirements of Condition 37 The point is also made by Mr Sweetman that rather than the question of mootness there is an issue as to this Court s jurisdiction being an appellate court to resolve the dispute between Shell and Mr Sweetman as to the interpretation of the reinstatement agreement and guarantee particularly bearing in mind that Shell s parent company is not a party to the proceedings before the Court In my view Mr Sweetman s argument in this regard as to the interpretation of the reinstatement agreement and guarantee is misplaced Condition 37 focuses on the provision of funds to secure the satisfactory reinstatement of the site That is its purpose The gas in the Corrib field is a finite commodity and when it is used up there will be no further need for the gas terminal at the site Therefore it was commonsense and prudent planning for An Bord Pleanála to include a condition in the planning commission that the site would be reinstated to its former condition once the terminal was no longer required An Bord Pleanála in formulating that condition specified that the form and amount of the security shall be as agreed between Mayo County Council and the developer Mayo County Council in its letter of the 22nd August 2011 considered that the terms of Condition 37 of the decision of An Bord Pleanála have been complied with As Smyth J noted at page 31 of his judgment the form and amount of the security was ultimately a matter to be determined by Mayo County Council No form of documentation to give effect to the agreement was specified in Condition 37 In other words Mayo County Council had a measure of discretion in taking security from Shell in compliance with Condition 37 During the hearing before Smyth J it had been argued that what was proposed by Shell was not security Smyth J disagreed As he pointed out it was the prerogative of Mayo County Council to determine the form and amount of security Obviously there had to be agreement between the parties as to the form and amount of such security but ultimately it was for Mayo County Council to be satisfied that what was on offer complied with Condition 37 I cannot see any objection in principle to the approach taken by Smyth J on this issue The current position is that formal documents and arrangements have been completed between Mayo County Council and Shell The reinstatement agreement together with a guarantee from Shell s parent company have been put in place Mr Sweetman has sought to say that the terms of the reinstatement agreement together with the guarantee do not comply with Condition 37 Apart altogether from any question as to the jurisdiction of this Court to consider the arguments of Mr Sweetman as to whether or not the reinstatement agreement and guarantee are in compliance with Condition 37 it must be borne in mind that it is Mayo County Council that has to be satisfied as to compliance with Condition 37 Mayo County Council has decided that it is so satisfied Mayo County Council is not a party to these proceedings and in my view its decision that Shell has complied with Condition 37 cannot be challenged in these proceedings I would reiterate the fact that Mayo County Council in Condition 37 was given the task of agreeing with Shell the form and amount of security to secure the satisfactory reinstatement of the site Condition 37 therefore conferred authority on Mayo County Council as to how this was to be achieved In essence Mr Sweetman now purports to challenge that decision by arguing that the reinstatement agreement and guarantee are not sufficient to meet the requirements of Condition 37 That simply cannot be done in these proceedings given that Mayo County Council is not a party to these proceedings and it is its decision that is now being questioned in this appeal by Mr Sweetman I would merely observe at this point that it is not for this Court to substitute its view as to what would have been appropriate security to have been taken for the purpose of securing the satisfactory reinstatement of the site In fairness to Mr Sweetman in his outline of the issues in his written submissions he acknowledged the difficulty of raising this issue on the appeal Decision Given that I am satisfied that it is not open to Mr Sweetman on this appeal to challenge the decision of Mayo County Council to accept the reinstatement agreement and guarantee as being in compliance with Condition 37 it remains to be considered whether or not this appeal is now moot given that the formalities that were outstanding at the time of Smyth J s judgment have now been complied with It would be helpful to refer to Civil Procedure in the Superior Courts 3rd Ed Delany and McGrath and to a passage headed Where the subject matter of an appeal has become moot at paragraph 22 06 The learned authors stated 22 06 Where issues between the parties to litigation have been rendered moot by the time an appeal comes on for hearing the Supreme Court may decide that it will not proceed to hear and determine the matter As Finlay C J stated in Murphy v Roche the Supreme Court has made clear that it must decline to decide any question which is in the form of a moot in respect of which a decision is not necessary for the determination of the rights of the parties before it In the course of his judgment in Goold v Collins in which the Supreme Court concluded that the issue before it had become moot Hardiman J quoted the following passage from Tribe s American Constitutional Law A case is moot and hence not justiciable if the passage of time has caused it completely to lose its character as a present live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law Hall v Beals 396 U S 45 1969 Thus the Supreme Court has recognised that mootness can be viewed as the doctrine of standing set in a time frame the requisite personal interest that must exist at the commencement of the litigation standing must continue throughout its existence mootness US Parole Commission v Geraghty 445 US 388 1980 22 07 A similar view was expressed by the Supreme Court of Canada in Browski v Canada namely that an appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties and that such a live controversy must be present not only when the action or proceedings is commenced but also when the Court is called upon to reach a decision This passage was also quoted with approval by Hardiman J in Goold v Collins However it should be noted that as Murray C J subsequently made clear in O Brien v Personal Injuries Assessment Board No 2 the breadth of the concept of mootness is something that is often informed by national judicial policy In that case the Supreme Court concluded that the respondent still had a real current interest in the issues pending on appeal including the substantial question of costs so that a final determination of the controversy between the parties regarding the exercise of its statutory powers could be arrived at In these circumstances Murray C J was satisfied that it could not be said that a decision on the appeal would have the effect of resolving further some controversy affecting or potentially affecting the rights of the parties or that the passage of time had caused the proceedings to completely lose its character as a present live controversy Murray J had similar comments to make in the case of Irwin v Deasy and in that context Delany and McGrath observed at paragraph 22 08 as follows Murray C J stated that while it is the general practice of the court to decline to decide most cases in exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance the court may determine such a question in the interests of the proper administration of justice However he stressed that the discretion to hear an appeal where there is no longer a live controversy between the parties should be exercised with caution and academic or hypothetical appeals should not be heard In his view exceptions might only arise where there is a question of exceptional public importance at issue and where there are special reasons in the public interest for hearing the appeal So much has changed on the ground since the delivery of judgment by Smyth J in this matter Shell recommenced development on the site and completed the Corrib Gas Terminal while Mr Sweetman allowed this appeal to lie dormant for so many years In addition Mr Sweetman is not pressing the court to require a full shut down of the gas terminal and thus is no longer pursuing the reliefs sought on the appeal Given that it is not open to challenge the decision of Mayo County Council to accept that Shell is now in compliance with Condition 37 on this appeal it is all the more difficult to see how it could be said that there is a live controversy between the parties In truth Mr Sweetman is unhappy with the terms agreed between Shell and Mayo County Council and is attempting to persuade this Court to re write the terms of the reinstatement agreement and the guarantee While Mr Sweetman raised questions on the hearing of the appeal as to the adequacy and appropriateness of some of the terms of the Corrib Gas Terminal Reinstatement Agreement namely the definition of Cessation of Operations in Clause 1 and the inclusion of provisions for resolution of disputes between the parties by arbitration in Clause 6 and he has requested that this Court either adjudicate on the issues he has raised or remit the matter to the High Court for resolution of those issues that is something that simply cannot be done In my view this appeal is now a moot in circumstances given that there is no longer any live controversy left between the parties In all the circumstances I would dismiss the appeal THE SUPREME COURT Appeal No 167 2006 Laffoy J Dunne J Charleton J IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT BETWEEN PETER SWEETMAN APPLICANT APPELLANT AND SHELL E P IRELAND LIMITED LENNON QUARRIES LIMITED AND T J LENNON RESPONDENTS Judgment of Ms Justice Dunne delivered the 3rd day of February 2016 The commencement of any large infrastructure project is never easy Before a sod is turned or a brick is laid there are many important details to be dealt with Land may have to be acquired whether by compulsory purchase order or otherwise Planning permission has to be obtained Public consultation may be necessary Finance has to be put in place Depending on the nature of the project there may be any number of hurdles to be overcome It will not come as a surprise to anyone that such projects inevitably will be a matter of concern to those directly affected by them despite the fact that such projects may be of benefit to the community as a whole The person on whose land a motorway is to be built will naturally be concerned to lose their land albeit subject to compensation No one wants to have a sewage treatment plant constructed adjacent to their home Many people have issues with the erection of electricity pylons close to their homes with the construction of wind farms and the list goes on Apart from those directly affected by a project there are others in the community who may find a particular project objectionable on a variety of grounds For example the development of a motorway may give rise to concerns as to its impact on the archaeological heritage of the area through which it is intended that the motorway should pass There may be safety concerns for those living in the vicinity of a project which involves hazardous operations For others the issue of concern may be the impact of the project on the environment in the area concerned It is therefore not surprising that such projects often result in litigation initiated by those with such concerns with a view to stopping the projects altogether Such litigation is often focused on whether or not the party responsible for the particular project has or is complying with requirements of planning permission This is such a case Background The first named respondent Shell was granted planning permission on the 22nd October 2004 by An Bord Pleanála for the development of two sites of 160 hectares approximately and 117 hectares approximately in Bellanaboy Bridge and Bangor Erris County Mayo leading to the construction of a gas terminal for the reception and separation of gas from the Corrib gas field and for a peat deposition site respectively Mr Sweetman commenced these proceedings by Originating Notice of Motion on the 9th March 2005 seeking inter alia relief pursuant to s 160 of the Planning and Development Act 2000 the Act The reliefs sought by Mr Sweetman in these proceedings were broadly described by the learned trial judge Smyth J as follows 1 a declaration that all of the works carried out by the first respondent on its site at Bellynagelly South Ballinaboy Bridge Co Mayo are unauthorised unlawful and in breach of the planning permission II a range of inhibiting injunctions against the first respondent prohibiting a the carrying out any works on lands other than lands within the red line of the planning application map b the implementation of any part of development authorised by the planning permission c the discharge of polluting matter into waters and or storing excavated material in such quantities in such a manner at such locations as the run off must inevitably discharge such materials into adjoining water sources d the excavation of and or removal of and or dealing in any materials whatsoever from the quarry facility of the second and third respondent situate at Bunnahowen Glencastle Belmullet Co Mayo unless and until the second and third respondent and or the third respondent is in receipt of a full and valid grant of planning permission e the respondents to cease all works on the lands situate at Bellyagelly South Ballinaboy Bridge Co Mayo III a range of mandatory injunctions requiring a the restoration of lands upon which it is alleged unauthorised development has been carried out to its original condition as existed prior to the carrying out of the alleged unauthorised development b Shell to cease all works of opening entrances from the public road onto lands at Rossport South Ballina Co Mayo unless and until it has obtained a valid grant of planning permission in respect of such developments c Shell to cease all works establishing a works compound and storage compound for materials on lands situate at Rossport South unless and until it has obtained a valid grant of planning permission in respect of such developments d each of the respondents to obtain all necessary consents pursuant to the Waste Management Acts 1996 to 2003 for the storage and or disposal of waste arising from the development e the second and third respondent to apply for planning permission for the restoration of the illegal quarry lands and prohibiting works and or use being carried out thereon pending the determination of such planning applications f Shell to return the fencing posts and other materials imported by it onto lands situate at Rossport South on the 1st March 2005 to the unauthorised timber processing facility of T J Standish Limited at Leap Castle Rosscrea County Offaly whence they came which timber facility is unauthorised and operates without the benefit of any planning permission whatsoever and is currently the subject matter of High Court proceedings pursuant to the provisions of s 160 of the Planning and Development Act 2000 g Shell to restore the lands upon which the unauthorised development currently being carried out at Rossport South on i opening entrances from the public road and ii establishing a works compound to their original condition as existed prior to the carrying out of the alleged unauthorised works IV orders entitling the applicant to inspect i the works carried out and being carried out at the sites of Shell respondent at Bellyagelly South Ballinaboy Bridge Co Mayo ii the works carried out and being carried out on the sites of the second and third respondent at Bunnahowen Glencastle Belmullet Co Mayo The overall object of the proceedings was to stop the development taking place and requiring the restoration of the lands affected by Shell Mr Sweetman in his grounding affidavit described himself as a photographer and said that he had a keen interest in the environment and in protecting the Irish countryside He stated that on most weekends over the course of the period between March 2001 to 2005 he stayed within sight of Shell s site the subject matter of the proceedings He further stated that he has devoted a lot of his time to protecting the environment and in particular areas of special amenity rich in wildlife and plant life He also stated that he was a member of An Taisce and of the Irish Heritage Trust When the matter came on for hearing before Smyth J in March 2006 it was agreed between Mr Sweetman and the second and third named respondent that the proceedings against those respondents could be struck out Despite the fact that a large number of reliefs were sought in the originating notice of motion by the time the matter came on for hearing before the learned trial judge only two issues were pursued by Mr Sweetman The first of those related to Condition No 1 which provides the development shall be carried out in accordance with the following plans and particulars except as may be amended by the following conditions Reason to clarify the development to which this permission relates and in the interest of the proper planning and sustainable development of the area Smyth J observed in the course of his judgment Thirty eight conditions follow upon condition 1 in respect of a large and complex development It is clear from the document as a whole that it envisages much interaction as between the applicant Shell and the planning authority during the course of giving effect to the permission The second issue relates to Condition 37 which provides Prior to commencement of development the developer shall lodge with Mayo County Council a cash deposit a bond of an insurance company or other security to secure the satisfactory reinstatement of the site upon the cessation of activity at the terminal coupled with an agreement empowering Mayo County Council to apply such security or part thereof to the satisfactory reinstatement of the site the form and amount of the security shall be agreed between Mayo County Council and the developer or in default of agreement shall be determined by An Bord Pleanála Reason To ensure the satisfactory reinstatement of the site It should be noted that the fact that Mr Sweetman chose to pursue the reliefs claimed in respect of only Condition No 1 and 37 was notified to Shell on the eve of the hearing before the learned trial judge The learned trial judge dismissed the application He concluded that as a fact and as a matter of law there had been substantial compliance with Condition 37 He added that as had been agreed by counsel for Shell certain formalities remained to be fulfilled Mr Sweetman has now appealed from the judgment of the learned trial judge of the 14th March 2006 and the order of the High Court made on the 28th March 2006 refusing Mr Sweetman the reliefs sought in respect of the alleged non compliance with Conditions 1 and 37 of the planning permission The appeal A notice of appeal dated the 30th day of April 2006 was filed on behalf of Mr Sweetman The grounds of relief were that Smyth J erred in law and or on the facts as follows 1 In holding that the respondent herein had complied with all the terms and conditions of planning permission register reference no 03 3343 and An Bord Pleanála reference 16 207212 and had not carried out any unauthorised development for the purposes of the Planning and Development Act 2000 in particular holding that there had been compliance with Condition 37 concerning having the stipulated security in place before commencing the development 2 In disregarding the submissions of the applicant appellant s counsel at the outset of the hearing that the only grounds of objection then being pursued and the orders that his client was seeking was simply a determination as to whether or not Condition 37 and Condition 1 had been complied with that in the event of such a determination being made it was reasonable to assume that the respondent would duly and promptly comply but if such compliance did not occur then the more onerous orders being sought in the originating motion should be made 3 In holding that the various considerations for exercising the discretion obtained without taking any account of the aforesaid submission and the position of the applicant appellant In addition it was stated in the notice of appeal that the following orders were sought a A declaration that Condition 37 has not been complied with b An order that in the event of full and prompt compliance with the Condition 37 not being affected any further works on the development be restrained As can be seen the focus of the appeal was on Condition 37 Subsequent events As stated above the learned trial judge found as a fact and as a matter of law that there had been substantial compliance with Condition 37 It was acknowledged by Smyth J that there were outstanding certain formalities to be fulfilled An affidavit sworn herein on the 15th October 2015 by Ann Hamilton the finance director of Shell sets out the details of the discussions between Shell and Mayo County Council in finalising the financial security arrangements The Corrib Gas Terminal Reinstatement Agreement together with a guarantee from Shell s parent company was entered into between Shell and Mayo County Council on the 16th August 2011 A letter of the 22nd August 2011 from Mayo County Council to Mr Gavin Lawlor Tom Philips Associates Shell s planning advisers stated that the Council considers that the terms of Condition 37 of the decision of An Bord Pleanála Ref PL16 207212 have been complied with Thus from the point of view of Shell and Mayo County Council as of the 16th August 2011 not only had there been substantial compliance with Condition 37 all of the outstanding formalities had been completed What was happening in the meantime in respect of Mr Sweetman s appeal The answer to that question is simply nothing Ultimately the matter was listed as an uncertified appeal for mention before the Chief Justice Prior to the matter being listed for mention before the Chief Justice the parties exchanged correspondence in the course of which the solicitors acting for Mr Sweetman requested confirmation that Shell would furnish details as to when the pre commencement bond as required under Condition No 37 had been formally lodged A copy of the documentation in that regard was also sought The solicitors on behalf of Shell responded saying Shell E P Ireland Limited has fully complied with Condition 37 of planning permission Ref P03 3343 A parent company guarantee as originally agreed between the parties and accepted by the High Court has been provided to Mayo County Council Therefore SEPIL are of the view that there is no issue in dispute between the parties and the matter is now moot We therefore call on you to withdraw your appeal without further delay The appeal was not withdrawn despite the exchange of correspondence and at a further hearing before the Chief Justice on 8th October 2015 it was agreed that Shell would provide the affidavit to which I have previously referred namely the affidavit of Ann Hamilton for the purpose of exhibiting the documentation demonstrating compliance with Condition 37 and the recent correspondence between the parties Prior to the matter being listed in the uncertified list of appeal Mr Sweetman had taken no steps whatsoever to advance the appeal in this matter Since the matter was at hearing in the High Court the Corrib Gas Terminal has been constructed and is now completed The issues The issues in the appeal identified by counsel on behalf of Mr Sweetman were as follows 1 What is encompassed by the phrase Cessation of activity at the terminal in Condition 37 2 In March 2005 when these proceedings commenced or even a year later when they were heard and decided had Shell complied with Condition 37 It is contended on behalf of Mr Sweetman that the answer to this question was manifestly no 3 Since this Court is exclusively an appellate body and the supervening events were never considered in the High Court has this Court jurisdiction to rule on disputes concerning them at all It was contended on behalf of Mr Sweetman that the Court did not have such jurisdiction but in the event that that contention was wrong questions were posed as to whether or not Shell was now in compliance with Condition 37 in the light of supervening events a position which is contested by Mr Sweetman and whether at this juncture or on what conditions the Supreme Court should exercise its discretion as to the remedies applicable It was not suggested that the gas terminal should now be shut down The issues identified by counsel on behalf of Shell were firstly the question of whether or not the appeal is now moot in the light of the steps that have been taken to complete the formalities outstanding to the satisfaction of Mayo County Council and secondly the effect of the lack of an appeal from the conclusion of the learned trial judge contained in paragraph 55 of his judgment that Even if I were wrong in the determinations which I have made both as matters of fact and law concerning conditions 1 and 37 as above and the first respondent were considered as having failed to comply with the conditions or had engaged in unauthorised development I would nonetheless exercise the discretion under s 160 not to make an order having regard to the following factors a the trivial and or technical nature of the breaches b the bona fides of the first respondent c the attitude of the planning authority d the public interest and hardship to third parties e the delay on the part of the applicant in particular making it necessary to have an extension of time in which to proceed and f the failure to respond promptly to the replying affidavits leaving on the court file a large number of complaints concerning the development which were wholly unwarranted Accordingly as counsel on behalf of Shell pointed out even if the learned trial judge had been in error in coming to the conclusion that there had been substantial compliance with Condition 37 nonetheless he would not have granted relief pursuant to s 160 of the Planning and Development Act 2000 Section 160 of the Planning and Development Act 2000 It would be helpful to set out the relevant provision of s 160 at this point Section 160 1 of the 2000 Act provides as follows Where an unauthorised development has been is being or is likely to be carried out or continued the High Court or the

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  • alleged invalidity of the non statutory scheme In addressing this application it is I think worth asking what the position would be if fresh proceedings were commenced in December 2015 in relation to the alleged invalidity of a scheme in relation to events which occurred in 1987 I think it is plain that no such proceedings would be issued because any sensible litigant would recognise that they were doomed to fail Any claim for damages would be barred by the provisions of the Statute of Limitations Any claim for equitable relief would be met by a claim of laches Furthermore the capacity of the Court to hear and determine factual matters which occurred almost 30 years previously must be questioned However if the plaintiff attempted to commence new proceedings arising out of matters which had been the subject of an earlier case any such proceedings would be bound to fall foul of the rule in Henderson v Henderson which has been restated in A v The Medical Council 2003 4 IR 302 and Carroll v Ryan 2003 1 IR 309 If the issues raised were not already res judicata because of the determination made in those proceedings then they were matters which plainly could have been raised in 1987 and addressed When it is further appreciated that notwithstanding these principles Mr Rooney was allowed in the course of the 1993 proceedings to make extensive argument as to the legality and alleged invalidity of the non statutory scheme then such a conclusion would be irresistible Indeed Mr Rooney recognised as much when asked why he had not commenced separate proceedings he replied Sure I d be entitled to be kicked out in Henderson v Henderson because it the claim should be in the first ones 45 In my view Mr Rooney s analysis is correct Furthermore the logic of this analysis cannot be avoided by framing the application as one to amend the Statement of Claim in proceedings which have been determined in substance and have been dormant for a quarter of a century The principle in Henderson v Henderson and A v the Medical Council and Carroll v Ryan is that court resources and judicial time should not be wasted by bringing further proceedings to advance claims which could have been advanced in earlier proceedings Nor should an opposing party be subjected to the cost and stress involved in repeated court applications which seek to ventilate matters which could have been advanced in one set of proceedings That logic applies here with greater indeed almost overwhelming force 46 In Johnson v Gore Wood Co 2002 2 A C 1 Lord Bingham identified the principle is having much in common with cause of action estoppel and issue estoppel the underlying public interest is the same that there should be finality in litigation and that a party should not be twice vexed in the same matter Later Lord Bingham said there will rarely be a finding of abuse unless the later proceedings involve what the court regards as unjust harassment of a party In a later case Woodhouse v Consignia plc 2002 1 W L R 2258 Lord Justice Brooke observed at least as important is the general need in the interests of justice to protect the respondents to successive applications in such circumstances from oppression The rationale for the rule in Henderson v Henderson is a rule of public policy based on the desirability in the general interest as well as that of the parties themselves the litigation should not drag on forever and that the defendant should not be pressed by successive suits when one would do These observations apply with peculiar force in this case There were two full hearings and appeals and multiple applications to challenge and set aside those proceedings all of them unsuccessful A further round of argument in the High Court and almost inevitably on appeal would undoubtedly amount to oppression and unjust harassment of a party which has been the subject of repeated court proceedings In my view it makes no difference in this regard that the 1987 proceedings were not formally concluded The principle is not dependent on a conclusion of the prior proceedings although that will normally be the case It is based upon the fact that arguments are sought to be advanced later which could have been advanced at an earlier stage and determined and where subsequent attempts to ventilate the arguments amounts to harassment 47 It may be that Mr Rooney is entitled to complain about the time it has taken to bring these proceedings to their formal conclusion But he cannot doubt that he has received much more court time and attention than most litigants and certainly than those professionally represented Mr Rooney has had not just one but two full opportunities to ventilate claims in relation to the non statutory scheme in the High Court and to have those adjudications appealed to and considered by the Supreme Court He has also had separate proceedings heard in the High Court in which he sought to set aside those judgments because they did not deal with what he now considers to be the true issues in controversy that is the claims he now seeks to include in the proposed amended Statement of Claim In addition he has made numerous applications to seek to undermine set aside or qualify the effect of the judgments in these cases On this occasion the State respondents as they are entitled to advance the argument that the proposed amendment should be refused on the grounds that it raises arguments which could plainly have been advanced and determined in the 1987 proceedings when in the High Court and Supreme Court in 1990 and 1991 This argument is in my view well founded and accordingly and in particular given the length of time involved in the litigation of all conceivable claims raised by Mr Rooney I would dismiss the appeal against the order of Mr Justice Murphy refusing to permit amendment of the Statement of Claim Complaints 48 During the oral argument in this appeal Mr Rooney referred to his complaints made against members of the judiciary including members of the Supreme Court In addition he objected to 7 judges hearing his case He also requested that I take possession of a letter to the Chief Justice of the 28th of July and act upon the said notification of judicial misconduct judicial misbehaviour The letter rehearses many of Mr Rooney s complaints about the outcome of the various proceedings that these remaining issues in the 1987 proceedings had not been heard and complaints that his correspondence has not been dealt with I record these matters here for the sake of completeness I have set out the progress of these and related proceedings at some length and identified some of the difficulty of ascertaining all the details of the various cases and applications I attach to this judgment a tentative chronology identifying the source of the information Other than doing so and dealing in this judgment with the two outstanding matters from the 1987 proceedings I do not consider that I should take any further step in relation to these matters I wish to make it clear that these matters have not influenced my consideration of the substantive matters raised by Mr Rooney Costs 49 It follows from the foregoing that both applications brought by Mr Rooney have failed and the next issue in this Court is the costs of these appeals It is also apparent that the next step in the 1987 proceedings would be a formal application to the High Court to dismiss the claim in the light of the determination of the special case and perhaps consequential costs orders I am reluctant to press these matters to their logical conclusion as my predecessors may have been in 1991 but will do so if there is no other possible resolution The element of finality and certainty is long overdue in these proceedings That is the right vindicated in the decision of the ECtHR It is apparent however that the proceedings have been tortuous and have imposed a very severe burden on all the parties concerned Mr Rooney while unsuccessful has in my view been motivated by genuine belief that he has been treated unfairly At certain points it is apparent that he seemed anxious to resolve matters with State authorities although his expectations may have been unrealistic He also expressed concerns about the pursuit by the State of massive costs On the opening of this appeal he raised the question of mediation Counsel for the State parties was not in a position to respond at that point without instructions and indeed it seemed preferable that the Court should deal with the matters raised in this appeal so that the legal issues could be brought to finality The Court will however adjourn the case for a period more lengthy than normal to allow the parties to consider the entire position and whether it is possible even at this stage to come to any form of agreed resolution in the light of this decision and its clear implications If that is not possible the Court will proceed to deal with costs on the 5th of April 2016 Appendix One Chronology of the Proceedings Date Proceedings Case Number if applicable Source of information Additional sources 19 11 1987 Special Summons issued by John Rooney 1987 No 1120 Sp Ct 6 Tab 8 Index to Condensed Book of Appeal 21 12 1987 High Court Order by Mr Justice Barr case sent for plenary hearing 1987 No 1120 Sp Ct 6 John Rooney s Chronology Pg 11 of Plaintiff s Submissions 15 01 1988 Mr Rooney s first Statement of Claim filed 1987 No 1120 Sp Ct 6 Tab 13 Index to Condensed Book of Appeal 11 03 1988 State Defendants Defence filed 1987 No 1120 Sp Ct 6 Tab 14 Index to Condensed Book of Appeal 18 05 1988 John Rooney s amended Statement of Claim filed 1987 No 1120 Sp Ct 6 Tab 15 Index to Condensed Book of Appeal 01 03 1989 John Rooney s amended Statement of Claim filed 1987 No 1120 Sp Ct 6 Tab 16 Index to Condensed Book of Appeal 06 11 1989 John Rooney s November 1989 Statement of Claim filed 1987 No 1120 Sp Ct 6 Tab 19 Index to Condensed Book of Appeal 25 01 1990 Notice by John Rooney to the Defendants for a motion for judgment in default of defence returnable 19 February 1990 1987 No 1120 Sp Ct 6 Tab 20 Index to Condensed Book of Appeal 02 02 1990 Attempted Delivery of Defence by the State Defendants 1987 No 1120 Sp Ct 6 Tab 21 Index to Condensed Book of Appeal 19 02 1990 Order by Mr Justice Barron to dismiss the Ombusdman as a party to the Rooney No 1 proceedings 1987 No 1120 Sp Ct 6 Tab 3 Index to Condensed Book of Appeal 19 02 1990 Order by Mr Justice Barron to dismiss Donal McDaid Patrick Delaney and the IFA as parties to the Rooney No 1 proceedings 1987 No 1120 Sp Ct 6 Tab 4 Index to Condensed Book of Appeal 19 02 1990 Order by Mr Justice Barron to dismiss John Rooney s motion for judgment in default of judgment 1987 No 1120 Sp Ct 6 Tab 5 Index to Condensed Book of Appeal 14 03 1990 Notice of Appeal 1987 No 1120 Sp Ct 6 Tab 2 Index to Condensed Book of Appeal 30 07 1990 Adjournment of the Special Case by Costello J John Rooney s Chronology Pg 12 of Plaintiff s Submissions 12 10 1990 Supreme Court Hearing of Appeal No 111 1990 before Griffin Hederman and O Flaherty JJ Case adjourned pending trial of the Special Case Book of Appeal 111 1990 Tab 2 Book of Appeal Handed up 9 December 2015 John Rooney s Chronology Pg 13 of Plaintiff s Submissions 18 01 1991 22 01 1991 23 01 1991 24 01 1991 Hearing of the Special case in the High Court before Lavan J John Rooney s Chronology Pg 13 of Plaintiff s Submissions 16 05 1991 Judgment of Lavan J in the Special Case dismissing the Plaintiff s case Book of Appeal 111 1990 Tab 1 Book of Appeal Handed up 9 December 2015 John Rooney s Chronology Pg 13 of Plaintiff s Submissions 19 12 1991 Supreme Court judgment delivered by O Flaherty J in the Special Case SC Nos 111 1990 and 224 1991 Book 2 Judgments Tab 1 Reported at 1991 2 I R 540 19 12 1991 Supreme Court dismisses Plaintiff s Appeal No 111 of 1990 in respect of appeals against the orders to strike out the claims against the Ombudsman Donal McDaid Patrick Delaney and the IFA Appeal No 111 1990 John Rooney s Chronology Pg 14 of Plaintiff s Submissions Also alluded to in the judgment of Mr Justice Finnegan on the 9th March 2010 27 05 1992 Plaintiff applies to have Appeals 111 1990 and 224 1991 heard before a five judge constituted Supreme Court Appeal No 111 1990 and Appeal No 217 2007 John Rooney s Chronology Pg 14 of Plaintiff s Submissions 27 07 1992 Plaintiff s application to have the matter referred to the CJEU for a preliminary ruling is rejected John Rooney s Chronology Pg 14 of Plaintiff s Submissions 04 07 1994 Morris P makes no order on a motion brought by Mr Rooney for directions whether his action had been fully determined John Rooney s Chronology Pg 14 of Plaintiff s Submissions 23 11 1994 Fresh proceedings are dismissed by the High Court in John Rooney v The Minister for Agriculture Record No 1993 706P Submissions of the Respondents p 6 04 05 2000 05 05 2000 Supreme Court hearing of Rooney No 2 to set aside Appeal 111 1990 Procedural issues and 224 1991 Special Case John Rooney s Chronology Pg 14 15 of Plaintiff s Submissions 23 10 2000 Supreme Courts delivers its judgment in Rooney No 2 rejecting the Plaintiff s application to set aside Appeals Nos 111 1990 and 224 1991 John Rooney s Chronology Pg 15 of Plaintiff s Submissions 08 01 2001 Plaintiff brings a Motion to amend the Statement of Claim delivered on 6 November 1989 John Rooney s Chronology Pg 15 of Plaintiff s Submissions 12 03 2001 Plaintiff brings a motion seeking to have the decisions of the Supreme Court in Appeals Nos 111 1991 and 224 1991 set aside John Rooney s Chronology Pg 15 of Plaintiff s Submissions 05 10 2001 Supreme Court rejects Plaintiff s motion to overturn the decisions of the Supreme Court in Appeals Nos 111 1991 and 224 1991 John Rooney s Chronology Pg 15 of Plaintiff s Submissions 05 10 2001 Supreme Court makes an Issac Wunder order against John Rooney John Rooney s Chronology Pg 15 of Plaintiff s Submissions 13 07 2004 Laffoy J delivers her judgment in the High Court in respect of the Rooney No 2 proceedings No 1995 No 8836P Book 2 Judgments Tab 3 19 06 2007 Order by Smyth J that Issac Wunder Order prevented the Plaintiff from seeking to amend the Statement of Claim in the Rooney No 1 proceedings Referred to by Finnegan J in his judgment at p 6 Book 2 Judgments Tab 4 09 03 2010 Judgment of Finnegan J Hardiman and Macken JJ Concurring dismissing the Plaintiff s appeal in Appeals No 111 1990 and No 217 2007 Appeal No 111 1990 and Appeal No 217 2007 Book 2 Judgments Tab 3 09 03 2010 Finnegan J in the Supreme Court rules that the Plaintiff may be allowed to bring a motion to Amend the Statement of Claim remitting the matter to the High Court Appeal No 217 2007 Book 2 Judgments Tab 3 18 11 2010 Supreme Court judgment is delivered by Finnegan J Hardiman and Macken JJ Concurring which rejects the Plaintiff s appeal against the judgment of Laffoy J in the Rooney No 2 proceedings Appeal No 387 2004 Book 2 Judgments Tab 4 18 11 2010 Murphy J refuses Plaintiff s Motion to Amend the Statement of Claim delivered on 6 November 1989 in the Rooney No 1 proceedings Appeal 430 2010 Book of Appeal 430 2010 Tab 2 19 12 2012 Mr Rooney commences further proceedings raising complaints inter alia about the manner in which the Supreme Court had dealt with his appeals Plaintiff seeks 24 different reliefs Record No 2012 12844P Tab 2 Book 1 Index of Pleadings 14 03 2013 Mr Rooney delivers a Statement of Claim in fresh proceedings Record No 2012 12844P Record No 2012 12844P Tab 10 Book 1 Index of Pleadings 13 06 2013 Plaintiff files Notice of Motion to set aside the Supreme Court judgment in Rooney No 1 delivered on 19 December 1991 Appeal 224 1991 Tab 19 Book 1 Index of Pleadings 13 06 2013 Plaintiff files Notice of Motion to set aside the Supreme Court judgment in Rooney No 2 delivered on 18 November 2010 Appeal 387 2004 Tab 21 Book 1 Index of Pleadings 04 07 2013 Feeney J delivers his judgment rejecting Mr Rooney s complaints in the High Court Record No 2012 12844P Tab 25 Book 1 Index of Pleadings 31 10 2013 ECtHR rules that the length of the 1987 and 1995 proceedings violated Mr Rooney s rights as under Article 6 of the ECHR Application no 32614 10 Application no 32614 10 Judgment not included in the Books of Appeal 28 03 2014 Supreme orders to strike out Plaintiff s motion to set aside the Supreme Court judgment in Rooney No 1 delivered on 19 December 1991 Appeal 224 1991 Tab 23 Book 1 Index of Pleadings 28 03 2014 Supreme orders to strike out Plaintiff s motion to set aside the Supreme Court judgment in Rooney No 2 delivered on 18 November 2010 Appeal 387 2004 Tab 23 Book 1 Index of Pleadings 09 12 2015 Supreme Court hearing for Appeals No 111 1990 Motion for Judgment and Appeal No 430 2010 Motion to Amend Statement of Claim Appeal No 111 1990 Appeal No 430 2010 THE SUPREME COURT Appeal No 111 1990 Appeal No 430 2010 O Donnell J Clarke J Dunne J Between JOHN ROONEY Plaintiff Appellant and THE MINISTER FOR AGRICULTURE AND FOOD THE MINISTER FOR FINANCE THE TAOISEACH IRELAND AND THE ATTORNEY GENERAL DONAL MCDAID PATRICK DELANEY THE IRISH FARMERS ASSOCIATION ERAD THE MANAGEMENT BOARD FOR DISEASE ERADICATION ALAN GILLIS PATRICK DELANEY DENIS COFFEY TERENCE O CONNOR DENIS G HICKEY JAMES NOONAN AND JOHN MALONE AS BOARD MEMBERS OF ERAD THE MANAGEMENT BOARD FOR DISEASE ERADICATION THE MINISTER FOR THE PUBLIC SERVICE and THE OMBUDSMAN Defendants Respondents Judgment of O Donnell J delivered the 28th day of January 2016 1 The matters which came before this Court on the 9th of December 2015 were in themselves relatively simple but concerned proceedings of considerable age and unusual factual and procedural complication Mr Rooney the plaintiff and appellant has represented himself since the outset of these proceedings in 1987 but has in that time been able to qualify as a barrister in England and be admitted to the Bar in Northern Ireland and subsequently in this jurisdiction The appeals themselves concern two motions which would be familiar to the most junior lawyer The first is perhaps the most basic and commonly encountered application brought in civil proceedings a motion for judgment in default of defence the Motion for Judgment Rather ironically in the present context the normal function of a motion for judgment in default of defence is to seek to ensure that proceedings continue to move towards a hearing at a reasonable pace Hundreds of these motions are dealt with before the High Court each Monday and rarely involve any contention still less appeals The second matter is a motion which is also regularly encountered in these Courts a motion to amend a Statement of Claim the Motion to Amend While sometimes such a motion can involve more argument than a standard motion for judgment in default of defence nevertheless it is normally dealt with by the application of familiar principles and can be argued and disposed of quite quickly and involving few papers In this case however the hearing of both matters in this Court involved voluminous and almost impenetrable papers lengthy preparation and occupied considerable court time although relatively little of that time was occupied by the substance of the motions themselves 2 What makes these appeals remarkable however is that the proceedings themselves were commenced in 1987 and concerned events which occurred in 1983 The motion for judgment dates from 1990 The motion to amend the Statement of Claim in the context of this case is almost youthful having been commenced in 2001 and been determined in the High Court in 2010 It will be necessary to trace the very tangled path of these proceedings and some parallel proceedings in more detail later in this judgment But it is right to acknowledge that this lapse of time whatever the explanations and excuses is unacceptable In 2013 the European Court of Human Rights ECtHR held that the delay in bringing the proceedings to a conclusion was itself a breach of Mr Rooney s Article 6 rights to have his case determined within a reasonable time It is true that the substance of this case was disposed of in 1991 and that some aspects of the delay were understandable if not excusable However some aspects of the delay were caused by Mr Rooney s own actions and by the multiplicity of proceedings he commenced and by what proved to be a misplaced belief that a common sense solution could be found It is also the case that on occasions judges went to considerable lengths to deal with the cases and considerable latitude was extended to Mr Rooney The fact remains however that the continued existence of these proceedings 28 years after they were first initiated is not justifiable even in a system where the progress of litigation is controlled by the parties and not by the court itself Insomuch as the delay has been contributed to or caused by the administration of justice within the courts that is sincerely regrettable Repeated court appearances impose a considerable stress not just on an individual member of the public but also on those close to them Litigation is not in itself an intrinsically desirable activity and repeated litigation is a curse which blights many lives well beyond the central actor and not limited to those on his own side of the case 3 This case illustrates a number of truths which will be familiar to any person with experience of the law the system of administration of justice is human it is unavoidably imperfect resources are limited court time is expensive and scarce errors can be made by even the most capable and well intentioned people short cuts to paraphrase Lord Scarman can often be treacherous exacting a heavy price in delay anxiety and expense and once a case goes awry it is disproportionately difficult to right it and it often becomes prey to misunderstandings misconceptions and misfortunes It is often the case that a person who litigates on their own behalf has some sense of grievance about an issue which is neither fanciful nor necessarily completely ill founded that rejection of a complaint even if the correct and just outcome can often generate obduracy and suspicion that the decision was made for reasons of prejudice that litigants will often respond with misconceived applications and more intemperate allegations that the inevitable rejection of such applications feeds an easily triggered sense of conspiracy which often leads the litigant into conflict with the courts and individual judges Some litigants and not just those who represent themselves prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case The cycle continues and becomes almost a form of litigious perpetual motion 4 Judicial decisions however conscientiously rendered are regrettably but inevitably not always perfect justice Courts even final appellate courts reaching decisions after lengthy proceedings and refined argument are not always right Courts cannot achieve infallibility but they can provide a hearing a reasoned decision and ultimately and most basically finality It is the right of all parties that proceedings should end A right guaranteed by both the Constitution and the European Convention on Human Rights is to have a case determined in the sense not just decided but also brought to an end Finality is an important part of the process Cases like any contest can end neatly with satisfaction on all side or messily with recrimination but they must end The end result may be criticised but it must be accepted The Origins of the Dispute 5 The roots of this dispute go back I believe to 1983 It is necessary to qualify any statement in relation to the facts of this case with two observations First from the very outset the proceedings have been complicated by a proliferation of documents proceedings and multiple applications Second the papers which the Court had available to it on this appeal while voluminous are still quite limited and anything but comprehensive in the information they provide as to the multiple disputes between Mr Rooney and these and other defendants Some of the information must be gleaned from secondary accounts Since many of the applications in this and related litigation have involved disputes about what was said and done on previous occasions in court even that exercise is fraught with confusion and sometimes contradictory accounts I do not say this to criticise the presentation of papers to us by Mr Rooney who is representing himself and has limited resources but rather to explain why my account of the background facts is somewhat tentative 6 It appears that in 1983 Mr Rooney s herd was tested for bovine tuberculosis That is a Class B disease under the Disease of Animals Act 1966 the 1966 Act It has been a serious problem in the agriculture sector in Ireland and no one disputes the necessity of the State introducing comprehensive measures to detect the disease and prevent or restrict its spread As in many other areas of mass screening the testing process employed is indicative of the presence of the disease rather than definitive Scientific proof was at least at that time only available post mortem If an animal reacted to the tuberculin test it was a reactor with significant consequences both legal and practical for the treatment of that animal and the herd In Mr Rooney s case the process of testing reached the point that in an affidavit he said that 26 reactors were identified in a herd of 103 on a small holding There is no doubt that this was a significant blow to a young man trying to make his way in the world Mr Rooney had complaints about the manner in which the testing was carried out and therefore the accuracy of the results That is not an issue that this Court can resolve I do not wish however to suggest in any way that his complaints may or may not have been justified It is enough for present purposes to say that Mr Rooney was genuinely aggrieved This was the starting point for his many disputes with the Department of Agriculture which led him to investigate the law relating to animal testing In particular it appears Mr Rooney formed the view both that he was entitled as a matter of law in this case the 1966 Act and or the Constitution to compensation both for the reactor cattle and for the impact on his farming business and whether as a matter of law or fact that such amounts would be greater than was available under the complex range of measures which were then operated under the national scheme for the eradication of the disease The Regime in 1983 for the Detection and Control of Bovine Tuberculosis 7 The Act of 1966 is a general provision which deals with many species and many diseases However the incidence of bovine tuberculosis within the national herd has been a very widespread and persistent problem Under s 20 the Act of 1966 provision was made for the testing of animals to detect the presence of any disease and for the isolation of animals Regulations were made under the Act dealing with the specific case of bovine tuberculosis At the relevant time these regulations were laid down by the Bovine Tuberculosis Attestation of the State and General Provisions Order 1978 S I 256 78 the Order The Order specified the form of testing and the manner in which it should be carried out It also provided for the consequences of a positive test There was an obligation to isolate the reactor from the remainder of the herd to remain and to isolate the herd from adjoining holdings The farm became a restricted holding and movement permits were required for the movement of any animals In relation to the reactor affected any movement permit would only be granted for the purposes of removing the animal for slaughter 8 The Act provides for compensation when the Act is operated in a particular way In respect of Class B diseases such compensation provisions were triggered if but only if the Minister took possession of an animal under section 20 Compensation then became payable under section 22 Section 58 made provision for a scheme of compensation However and presumably because of the widespread nature of the bovine tuberculosis problem this mechanism was not normally adopted when dealing with affected herds When a reactor was identified after testing the Minister did not take possession of the herd or the affected animal Instead the mechanism of the Order came into play the holding became restricted and movement was restricted By this process farmers were effectively required to have reactors slaughtered But the Minister never took possession of the reactor instead the farmer remained the owner and sold the reactor at a carcase price to a meat factory There was in addition a scheme providing for grants to affected farmers which was not provided for in the Order The amount of the grant was the subject of negotiation between farmers organisations and the Department of Agriculture and took into account market values A farmer whose herd was affected by bovine tuberculosis received money for the affected animal from two sources the factory paying the carcase price and the non statutory scheme payment from the Department This scheme was widely advertised and the subject of active negotiation but its legal basis was simply an administrative procedure which as was held in McKerrig v Minister for Agriculture 1989 I L R M 82 created a private contract between the Department and any affected farmer in an individual case It is the operation of this non statutory scheme and the non operation of the statutory compensation provisions which lie at the heart of Mr Rooney s long running legal disputes with the Minister for Agriculture the State and others 9 The issues which came for the court on 9th December 2015 do not involve the resolution of any of the legal issues which might arise from this type of arrangement A number of observations can however be made even at this point First the administration of a very substantial grant system on a purely administrative basis and without either utilising or adapting the statutory scheme was unusual and likely to lead to disputes In McKerrig v Minister for Agriculture 1989 I L R M 82 O Hanlon J made some observations which are relevant to the present case It all seems to be a remarkably informal way to spell out and organise a scheme on which apparently hundreds of millions of pounds have already been spent One result of that element of informality is the present litigation in which neither side can say with certainty whether the payments are made on an ex gratia or contractual basis and have to come to Court to seek an answer to that problem Another extraordinary feature of the schemes which emerged in the course of the evidence is the fact that by the combination of the payment received from the meat factory for the animal sold for slaughter and the grant payment a diseased animal may be more profitable than a healthy one so that the scheme can hold out an inducement to unscrupulous persons to propogate rather than to eradicate disease in their herds Second it was recorded in the judgment in Rooney No 1 that it was said in argument that the reason the non statutory scheme was set up was that given the very prevalence of bovine tuberculosis in the country the establishment of the machinery for a compensation scheme under section 58 would itself been very costly and presumably inefficient The system of requiring private sale of reactors and providing for a grant scheme was undoubtedly cheaper to administer and perhaps more flexible and effective Third there does not appear evidence in the course of any of these proceedings to suggest that a greater amount would be paid to farmers if the reactor was acquired by the Minister and compensation paid under the Act The very fact that the non statutory scheme was the product of agreement with farming organisations suggests otherwise Furthermore while the system of restriction and movement orders imposes some constraint on the property rights of the citizen it does not expropriate them and such restriction is at least in principle capable of being justified on grounds of the public policy interest in preventing the spread of disease The method of payment to farmers via the non statutory scheme supplementing the carcase value had been found to be consistent with the Constitution by Murphy J in Grennan v the Minister for Agriculture Unreported High Court 4th October 1995 a finding approved by Laffoy J in Rooney No 2 Unreported High Court 13th February 2004 Finally there is a latent ambiguity in the concept of compensation in this type of situation which has been touched on in the recent decision of this court in Rafferty v the Minister of Agriculture 2014 I E S C 61 At times it appears to have been assumed by Mr Rooney that if a legally enforceable entitlement to compensation arose whether by statute or by reference to constitutional rights such compensation would not be based on the value of the reactor once tested but rather based on the assumption that the animal was disease free In many ways this is at the heart of much of the dispute here Much depends on whether one approaches the non statutory scheme as compensation for the loss of a healthy animal which Mr Rooney assumes or rather as an ex gratia grant which serves the purpose of reducing the financial impact on the farmer of the fact that an animal or animals have been the subject of a positive test for a significant disease and thereby encouraging farmers to cooperate with the scheme The Commencement of Proceedings 1987 No 1120 Sp Ct 6 10 On the 19th of November 1987 Mr Rooney issued a special summons The proceedings at this point were against the Minister for Agriculture and Food Minister for Finance the Taoiseach Ireland and the Attorney General The endorsement of claim sought a declaratory judgement or declaratory order from this Honourable Court that Mr Rooney is legally and constitutionally entitled to compensation under and in accordance with the Disease of Animals Act 1966 and also under and in accordance with the Bovine Tuberculosis

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