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  • is only common sense that if a plaintiff makes out a prima facie case and a defendant does not adduce any or any meaningful evidence to rebut it a plaintiff will be found to have discharged the burden of proof devolving upon it Similarly if the facts do not support a legal argument a defence based on that legal argument will fail and summary judgment may be granted Here there was a demand and the only response was the legal defence put forward and addressed in the other judgments herein 7 The summary judgment evidential tests are by now well established I reiterate them here for convenience The fundamental question is whether there is a fair and reasonable probability of a defendant having a real or bona fide defence either in law or on the facts or both It is not necessary to show that the defence will succeed or even will probably succeed The questions therefore can be reduced to the following First is it very clear that a defendant has no case Second are the issues simple and easily determined Third has a defendant disclosed even an arguable defence Fourth where there is no notice to cross examine can a court be confident on the affidavit evidence alone where the justice of the case lies These tests are set out in more detail in the three leading authorities viz First National Commercial Bank v Anglin 1996 1 I R 75 per Murphy J Aer Rianta c p t v Ryanair 2001 4 I R 607 McGuinness J and Hardiman J Harrisrange Ltd v Duncan 2003 4 I R 1 per McKechnie J As emphasised in each of these decisions in exercising this jurisdiction a court should proceed with care and caution 8 I too would dismiss the appeal THE SUPREME COURT Appeal No 114 2014 MacMenamin J Laffoy J Charleton J BETWEEN ULSTER BANK IRELAND LTD PLAINTIFF RESPONDENT AND RORY O BRIEN DANNY O BRIEN MICHAEL McDERMOTT DEFENDANTS APPELLANTS Judgment of Mr Justice John MacMenamin dated the 16th day of December 2015 1 I agree with both judgments which have been delivered today I would wish to make a few observations on the burden and standard of proof 2 What is in issue in summary judgment applications is whether or not a prima facie case can be made out by the plaintiff The burden of proof is on the party who asserts the debt is owed As a general principle a prima facie case will be made out when on the evidence available it would be open to a tribunal of fact if no other evidence was given or if that tribunal accepted that evidence even though contradicted in its material facts to enter a verdict for that party See O Toole v Heavey 1993 ILRM 343 at 344 3 As described in the judgments of my colleagues when one is dealing with applications for summary judgment the test is somewhat nuanced for the protection of a defendant

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  • also was plaintiff Ulster Bank Ireland Limited v Dermody 2014 IEHC 140 the Dermody case in which judgment was delivered by the High Court O Malley J on 7th March 2014 that is to say just four days after judgment was given by the High Court in this case the decision of the Supreme Court in the CAB case was found to be relevant to the determination as to whether the Bank as plaintiff in that case was entitled to enter final judgment on foot of a summary summons As in this case the matter came before the High Court by way of appeal against a decision of the Master dismissing the plaintiff s claim In her judgment O Malley J identified the central issue as whether the plaintiff in that case was entitled to rely on a grounding affidavit sworn by an employee of Ulster Bank Limited which was described as a company related to the plaintiff company i e the Bank which dealt on its behalf with its debt collection process In that case the claim was on foot of a guarantee 19 Recognising that she was bound by the decision of the Supreme Court in the CAB case O Malley J stated that the evidence of the deponent in that case Mr Evans was not admissible to prove the truth of the contents of the records unless it came within the provisions of the Act of 1879 as amended O Malley J continued at para 50 The issue that arises then is whether Mr Evans can be said to be an officer of the plaintiff bank within the meaning of the Acts In my view he cannot I accept that for the purposes of the Acts an employee may be considered to be an officer of the bank However Mr Evans is not an employee of the plaintiff but of a separate legal entity I can see no legal or factual difference between the service that Ulster Bank Limited provides to Ulster Bank Ireland Limited in debt collection cases and that provided by Certus to Bank of Scotland as considered by Peart J in Stapleton 20 The reference to Stapleton in that passage is a reference to the decision of the High Court Peart J in Bank of Scotland Plc v Stapleton 2013 3 I R 683 the Stapleton case The judgment in that case pre dated the order of the High Court in this case having been delivered on 29th November 2012 It was a decision on an appeal from the Circuit Court against an order for possession in favour of the plaintiff Bank of Scotland Plc as mortgagee over lands owned by the defendant The action and the appeal were heard in both the Circuit Court and the High Court on oral evidence The oral evidence given on behalf of Bank of Scotland Plc referred to in the judgment as BOS was given by Ms Finnegan As outlined Peart J in the judgment at para 5 her capacity to give such evidence was challenged by the defendant on the basis that she was not employed by BOS and therefore her evidence must of necessity be hearsay given that she had no personal knowledge of the books and records of BOS Earlier at para 4 Peart J had stated that Ms Finnegan was an employee of Certus which provided what she described as customer support to BOS borrowers and administrative support to BOS A letter of authority on BOS headed paper was put in evidence and that letter authorised Ms Finnegan to give evidence on behalf of BOS in the particular proceedings 21 As is recorded in the judgment of Peart J Ms Finnegan referred in her evidence to certain copy statements which she received from BOS which related to the defendant s mortgage account and showed the amount due She stated that from her personal computer in Certus she was able to access the records of BOS herself and she could therefore be satisfied as to the amount owing by the defendant and that she could therefore give evidence from her own knowledge of the books and records of BOS Her evidence was that the amount shown in the statements produced to the Court to be due was due and owing by the defendant thereby entitling BOS to the order for possession sought 22 Peart J identified the issue at para 7 as whether the letter of authority was sufficient to render Ms Finnegan a competent witness as to the arrears on the defendant s mortgage account or whether her evidence in that regard was inadmissible hearsay Peart J then went on to consider against those facts the application of the Act of 1879 as amended He considered a number of authorities including the judgment of Keane C J in the CAB case He set out his conclusion as follows at para 16 Where a bank needs to prove by sworn testimony the amount it is due by a defendant customer that evidence must be provided by an officer or partner of the bank in other words an employee of the bank itself and not some person employed by some other company to whom the task of collecting the debt has been outsourced for whatever reason To allow otherwise would be akin to a foreign bank engaging a solicitor here to collect the debt and that solicitor coming to court and giving evidence as to the amount due to the bank having been authorised to do so by the bank The evidence is necessarily hearsay and inadmissible It offends first principles and in my view there is no basis in law for permitting it 23 The reference in that passage to the necessity to provide evidence by an officer or partner of the bank is reflective of s 4 of the Act of 1879 That section provides as follows A copy of an entry in a banker s book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business and that the book is in the custody or control of the bank Such proof may be given by a partner or officer of the bank and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits Insofar as a litigant is relying on an entry in a banker s book to prove his claim it is undoubtedly the case that a copy of the entry should only be received in evidence when proof of the three matters outlined in s 4 is given by a partner or officer of the bank that is to say by an employee of the bank 24 The decisions in the Dermody case and in the Stapleton case are both premised on the assumption that compliance with s 4 of the Act of 1879 was a prerequisite to establishing prima facie proof of the relevant plaintiff s claim which had not been complied with because the deponent in each case was neither a partner nor an officer of the plaintiff In fact the kernel of the complaint made on behalf of the O Briens in this case is that there is an evidential deficit in that Ms Murray s affidavit did not contain averments to satisfy the three requirements of s 4 and a further requirement of s 5 1 c of the Act of 1879 as amended to the effect that the copy of the entry put in evidence had been examined with the original entry and was correct While expressing no view whatsoever as to the correctness or otherwise of the outcome of the Dermody case or the Stapleton case each of which was decided by reference to its particular facts the important point for present purposes is that this case is distinguishable from them on the facts and in particular the facts emphasised at paras 8 and 9 above as deposed to by Ms Murray as a senior officer of the Bank with responsibility for managing the O Briens loan facilities 25 Of the authorities to which the Court was referred the one closest at a factual and procedural level to this case is Governor and Company of the Bank of Ireland v Keehan 2013 IEHC 631 the Keehan case in which judgment of the High Court Ryan J was delivered on 16th September 2013 that is to say before judgment was given in this case The similarities are first that the plaintiff bank s claim there was brought by way of summary summons Secondly the motion to the Master to enter final judgment was grounded on affidavits sworn by an employee of the plaintiff Mr Murphy who averred that he was a business manager in the bank and was authorised to make the affidavit and did so from facts within his own knowledge and from a perusal of the plaintiff s books and records Thirdly the evidence of Mr Murphy established the sources of the defendant s indebtedness to the plaintiff the manner in which the defendant became liable to discharge that indebtedness and the amount of the indebtedness Finally no replying affidavit was filed on behalf of the defendant who resisted the application for final judgment on the basis that the plaintiff had not proved its case and that the plaintiff had not complied with the provisions of the Act of 1879 as amended As with this case the Master dismissed the claim and the matter was before the High Court by way of appeal from that decision 26 In his judgment Ryan J considered the provisions of the Act of 1879 as amended and in particular s 5 as amended by s 131 of the Central Bank Act 1989 He stated at para 17 These provisions contemplate the production in court of a document that will speak for itself as prima facie certification of the state of a bank account or of a transaction The evidence specified in sections 4 and 5 is required for verification of the provenance of the document as having been copied or taken accurately from records kept in the ordinary course of the bank s business The Act was primarily intended for cases in which the bank whose records are required as evidence was not a party The recent cases decided by this court make it clear that that situation is quite different from a case like this in which the bank witness bases his or her testimony on an examination of the books 27 Ryan J went on to consider the judgment of the High Court Clarke J in Moorview Developments Ltd Ors v First Active Plc Ors 2010 IEHC 275 the Moorview case and the decision of the High Court Finlay Geoghegan J in Bank of Scotland v Fergus 2012 IEHC 131 where the approach adopted by Clarke J in the Moorview case was followed He quoted the paragraphs from the judgment of Clarke J which are relied on by counsel for the Bank in this case the oft quoted paras 4 8 and 6 3 He made it clear that although those cases were plenary actions heard in oral evidence the fact that the evidence given in the case before him was on affidavit was not a material distinction In the case before him Ryan J determined that the plaintiff had made out a prima facie case having made the following observations about the contention that the requirements of the Act of 1879 as amended had not been complied with at para 27 Although the evidence of the contents of the bank s records does not conform to the formal specifications in the 1879 Act as amended in a number of respects it is nevertheless apparent as a matter of legitimate inference that the evidence of the defendant s liability emanates from the bank s books and records and that the statements are printed from its computer records The point however is that the case is not about the 1879 Act and a copy of a bank book but about a liability arising on a contract entered into by the defendant by written agreement signed by him and witnessed by his solicitor and an overdrawn current account The bank is proving its case that the defendant defaulted on a loan and has not discharged his overdrawn account It has to establish a sufficient prima facie case that will result in judgment being given unless the defendant raises some basis of defence As is clear from the agreed note of the ex tempore judgment of Hedigan J in this case which is quoted in the judgment of Charleton J he adopted a similar approach that the affidavit of Ms Murray provided a sufficient evidential basis for acceding to the Bank s application for judgment In my view that was the correct approach to adopt 28 The recovery by a plaintiff of a debt or liquidated demand in money payable by a defendant under contract by means of the summary summons procedure provided for in the Rules can arise in a myriad of factual circumstances Counsel for the Bank gave as an example a situation in which the manufacturer of an alcoholic beverage who had supplied and delivered goods to a customer and issued an invoice for the goods which had not been discharged then instituted summary proceedings and brought a motion for summary judgment In those circumstances clearly the provisions of the Act of 1879 as amended have no application Does that mean that the evidence put before the Master on the application for summary judgment has to include affidavit evidence of each employee who was personally involved in the supply and delivery of the goods issuing the invoice ascertaining the non payment of the invoice and so forth Clearly it does not Why then it must be asked should a plaintiff bank to whom the Act of 1879 as amended applies be in a different position in relation to the application of Order 37 of the Rules to it Was the Act of 1879 intended to make it more difficult for a plaintiff bank to prove its case counsel for the Bank in this case asked rhetorically 29 The answer is that a plaintiff bank is not in a different position to any other plaintiff seeking liberty to enter final judgment for a debt on foot of a contract as explained by Clarke J in para 6 3 of his judgment in the Moorview case as follows However the idea that a bank wishing to prove its case in debt against a customer has to produce a separate bank official who was personally involved in each individual transaction which gives rise to the customer s current debt is in my view fanciful A witness from a bank is entitled to give evidence of the bank s records showing the amount due by a customer of that bank That evidence and those records provide prima facie evidence of the liability If a specific element or elements of these records are challenged then the bank might well have a problem if it could not produce a witness who could give personal evidence of the contested matters The reason for that problem is not that the bank did not have evidence of the matter concerned Rather it is the weight to be attached to that evidence In quoting para 6 3 in the judgment in the Moorview case in the Keehan case Ryan J emphasised the second and third sentences in that quotation 30 I respectfully agree with Ryan J that the comments of Clarke J are relevant whether the witness is giving oral testimony or evidence on affidavit to meet the requirement of Order 37 of the Rules Indeed it is apt to recall that what the deponent of the affidavit supporting a motion for liberty to enter final judgment in accordance with Order 37 of the Rules has to swear as to the factual circumstances He or she has to swear positively to the facts showing that the plaintiff is entitled to the relief claimed Given the nature of the summary procedure provided for in the Rules which as Peart J stated in Motor Insurance Bureau of Ireland v Hanley 2007 2 I R 591 was introduced because it was something considered desirable in the interests of efficiency and cost it would be incapable of achieving those objectives if say a bank or a brewery suing for a debt due contractually could not rely on the evidence of one witness usually a senior officer or employee who could swear positively to the relevant facts 31 It is disclosed in the outline legal submissions submitted on behalf of the Bank that in an effort to avoid the unnecessary cost and expense of this appeal on what was termed as a bare technicality the solicitors for the Bank wrote to the solicitors for the O Briens on 20th June 2014 enclosing on a without prejudice basis a further affidavit by Ms Murray which included an averment demonstrating in relation to the copy documents exhibited by her compliance with the provisions of the Act of 1879 as amended invoked on behalf of the O Briens that is to say s 4 and s 5 1 c and inviting the solicitors for the O Briens to confirm that there was no basis on which the appeal could continue to proceed Copies of the relevant inter partes correspondence have been put before this Court The invitation was not accepted That is regrettable because as it was put in the ex tempore judgment of Hedigan J there is little benefit to the O Briens in stringing things out further The reality is that the debt due by the O Briens to the Bank has grown since the High Court judgment and continues to grow on a daily basis Order 32 For the reasons outlined above as well as the reasons set out in the judgment of Charleton J I consider that the appeal should be dismissed THE SUPREME COURT Appeal No 114 2014 MacMenamin J Laffoy J Charleton J BETWEEN ULSTER BANK IRELAND LIMITED PLAINTIFF RESPONDENT AND RORY O BRIEN DANNY O BRIEN AND MICHAEL McDERMOTT DEFENDANTS APPELLANTS Judgment of Ms Justice Laffoy delivered on the 16th day of December 2015 Scope of the judgment 1 The gravamen of the appeal by the first and second named defendants the O Briens against the order of the High Court Hedigan J made on 3rd March 2014 giving judgment to the plaintiff the Bank for the sum of 888 920 89 and costs is that the affidavit evidence adduced on behalf of the Bank amounted to inadmissible hearsay evidence and in particular that by reason of its failure to comply with the requirements of ss 4 and 5 of the Bankers Books Evidence Act 1879 the Act of 1879 as amended the affidavit evidence adduced could not be received as prima facie evidence of the O Briens indebtedness to the Bank in accordance with s 3 of the Act of 1879 The history of the proceedings in the High Court and the affidavit evidence adduced and relied on by the Bank are particularised in the judgment about to be delivered by Charleton J In that judgment Charleton J comprehensively addresses the law applicable to the admissibility of hearsay evidence in this jurisdiction including the provisions of the Act of 1879 as amended in the context of the factual matrix and concludes that the High Court judge did not err in giving the Bank judgment against the O Briens I agree with the conclusions reached in that judgment and with the analysis of the law and its application to the facts outlined and I have nothing to add to it 2 However given that the submissions made on behalf of the O Briens and the Bank disclose some differences in the jurisprudence of the High Court in the recent past as to the evidence which may be sufficient to discharge the obligation on a financial institution to establish its debt on an application for summary judgment in summary proceedings to recover that debt I consider that it would be useful to consider the issue raised on the appeal in the narrow context of the procedural approach adopted by the Bank in this case to recover its debt and the extent to which the factual circumstances here are analogous to or differ from the factual circumstances considered in the authorities cited by the parties Procedure adopted by the Bank 3 The Bank adopted the procedure by summary summons provided for in Order 2 rule 1 of the Rules of the Superior Courts 1986 as amended the Rules That procedure is available to a plaintiff who seeks to recover a debt or liquidated demand in money payable by the defendant arising inter alia upon a contract No issue has been raised on behalf of the O Briens as to the entitlement of the Bank to avail of the procedure In any event it is quite clear from the indorsemnt of claim on the summary summons that the Bank did have such an entitlement 4 The indorsement of claim on the summary summons which issued in this case on 26th August 2013 naming as defendants the O Briens and Michael McDermott collectively referred to as the defendants complied with the requirements of Order 4 rule 4 of the Rules The special indorsement of claim on that summons outlined a the relevant terms of the Facility Letters dated 22nd July 2004 and 8th December 2005 whereby the Bank advanced loan facilities of 329 000 and 471 000 respectively to the defendants on the basis of joint and several liability and the draw down of each of the loan facilities b the demand by the Bank for repayment of the sums then due and owing by the three defendants and each of them on a joint and several basis pursuant to the said loan facilities by letter dated 1st February 2013 c that despite the demand made the defendants and each of them had failed neglected and refused to pay to the Bank the amount demanded and d that at the time of the issue of the summary summons the defendants were jointly and severally liable to the Bank in the sum of 888 920 89 together with interest The relief claimed was judgment in the said sum of 888 920 89 together with further interest accruing and costs In the outline legal submissions filed on behalf of the O Briens it is suggested that the sum of 888 920 89 was claimed on foot of guarantees executed by the defendants That is not the case It is quite clear from the special indorsement of claim that the Bank was claiming on the basis that the defendants were primarily liable to the Bank for monies advanced by the Bank to them I have considered it appropriate to clarify that point notwithstanding that in all probability the reference to guarantees was a slip 5 Although an appearance was entered to the proceedings by the solicitors on record for the O Briens on 19th September 2013 an appearance was not entered on behalf of the third defendant Therefore the procedural steps subsequently adopted by the Bank which are the subject of this appeal related only to the O Briens As is outlined in the judgment of Charleton J on 16th October 2013 the Bank filed a notice of motion for liberty to enter final judgment against the O Briens and each of them in the sum of 888 920 89 together with further interest accruing thereon and costs That motion came before the Master on 14th November 2013 who ordered that it be dismissed with costs to the O Briens against the Bank That order was appealed to the High Court and it was on foot of that appeal that the High Court by the order dated 3rd March 2014 gave the Bank judgment in the sum of 888 920 89 and costs 6 The jurisdiction invoked by the Bank in filing the notice of motion on 16th October 2013 was the jurisdiction conferred by Order 37 of the Rules Order 37 rule 1 insofar as is relevant for present purposes provides as follows Every summary summons indorsed with a claim other than for an account under Order 2 to which an appearance has been entered shall be set down before the Master by the plaintiff on motion for liberty to enter final judgement for the amount claimed together with interest if any Such motion shall be supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action It is clear on the wording of that rule that as regards proof of the claim an affidavit sworn by a person other than the plaintiff who can swear positively to the relevant facts is sufficient However the later provisions of Order 37 are protective of the defendant For instance under rule 2 although it is stipulated that the motion for liberty to enter judgment under that order shall be heard on affidavit there is a proviso that any party desiring to cross examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross examination and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by special leave Further under rule 3 it is provided that the defendant may show cause against the motion by affidavit 7 As is outlined in the judgment of Charleton J in this case the grounding affidavit in support of the motion for final judgment was sworn on 15th October 2013 by Mary Murray Ms Murray The O Briens legal representatives did not seek to have Ms Murray cross examined nor did the O Briens seek to show cause against the motion by affidavit disputing the facts deposed to by Ms Murray In short the defence of the O Briens before the Master and on appeal to the High Court was the legal argument that Ms Murray s evidence was hearsay and that the requirements of ss 4 and 5 of the Act of 1879 as amended had not been complied with 8 Considering Ms Murray s affidavit in the light of the requirements of Order 37 the first question which arises is whether on the first matter stipulated in rule 1 Ms Murray could and did swear positively to the relevant facts to establish the plaintiff s claim In para 1 of the affidavit she described her function in the Bank as a Senior Relationship Manager with the Global Restructuring Group and she averred that she had responsibility for the daily management of the O Briens loan facilities with the Bank She also averred that she made the affidavit with the authority and consent of the Bank in order to ground its application for liberty to enter summary judgment She also averred that she made the affidavit from facts within her own knowledge and from a perusal of the Bank s books and records and she believed the same to be true and accurate Those averments which were uncontroverted in my view were sufficient to comply with the requirement in Order 37 rule 1 that Ms Murray could swear positively to the relevant facts to establish the Bank s claim It is difficult to envisage any person in a better position than her so to do given that at the time she was a senior official of the Bank with specific responsibility for managing the O Briens loan facilities with the Bank 9 In order to prove the Bank s claim Ms Murray in her affidavit went on to make the following averments a In relation to each of the Facility Letters referred to in the special indorsement of claim she averred that the Bank had offered to advance the relevant loan facility to the defendants that they had accepted and had drawn down each facility and that as regards each facility their liability was to be joint and several liability Ms Murray also averred as to the term of each facility and the rate of interest which was to be charged at the time of the offer She also exhibited a copy of each of the Facility Letters which showed acceptance by the defendants endorsed on each Those copies corroborate what Ms Murray averred to and there is nothing in them which casts any doubt whatsoever on the matters to which she had averred b Having averred as to the expiration of the term of each of the loan facilities consistently with the terms of the Facility Letters which had occurred by the end of 2006 without repayment in full being effected by the defendants Ms Murray went on to aver that by a letter of demand dated 1st February 2013 the Bank demanded immediate repayment of the sums due and owing to the Bank by the defendants on foot of the Facility Letters She exhibited a copy of the letter of demand She was one of the signatories of the letter her co signatory being described as Relationship Manager The content of the letter of demand is wholly consistent with the Bank s claim as set out in the special indorsment of claim on the summary summons and it is also consistent with the facts as deposed to by Ms Murray in her affidavit It clearly identified each loan facility and set out the amount then due on foot of each It also set out that liability had arisen for an additional sum representing additional unpaid accrued interest in respect of the two loan facilities to the date of the letter of demand c Having averred that the amount demanded had not been discharged Ms Murray at paragraph 19 deposed to the fact that there remained due and owing by the O Briens to the Bank the sum claimed in the indorsement of claim in the summary summons that is to say the sum of 888 920 89 The foregoing uncontradicted averments in my view show that the Bank is entitled to recover from the O Briens and each of them the sum of 888 920 89 claimed in the indorsment of claim on the summary summons or to put it another way that a prima facie case has been made out that the O Briens are jointly and severally indebted to the Bank in that sum in respect of the monies due on foot of the loan facilities including unpaid accrued interest 10 Ms Murray exhibited in paragraph 19 what she described as a statement of account as of the date of the swearing of the affidavit That exhibit comprises three pages each bearing the date 15th October 2013 and the names of O Brien and McDermott at the top Each page is obviously a print off of an electronically maintained statement of account over the period from November 2012 to 6th September 2013 While the print offs contain limited information there is absolutely no doubt about the proper inference to be drawn from them The first which refers to Account 14646125 obviously relates to the loan advanced on foot of the Facility Letter dated 22nd July 2004 and shows sums debited to the account on four dates at three monthly intervals which sums obviously reflect the interest accrued As of 15th October 2013 the sum due in respect of that loan was 360 892 52 The second is in the same format as the first and refers to Account 14646208 which clearly relates to the loan advanced on foot of the Facility Letter dated 8th December 2005 That print off shows a balance due of 511 542 20 as of 15th October 2013 The third which is also in the same format which refers to Account 14646042 clearly refers to the account in respect of unpaid accrued interest and the balance due on that account as of 15th October 2013 was 20 289 80 11 It is true that there is an inconsistency between the sum due as stated in paragraph 19 888 920 89 and the aggregate of the amounts shown to be due on foot of each of the print offs in relation to the three accounts 892 724 52 The explanation for that inconsistency is patently obvious The sum referred to in paragraph 19 reflects what was due and what was claimed prior to the issue of the summary summons whereas the aggregate of the sums appearing on the exhibited statement is calculated to a later date Accordingly that inconsistency does not raise any question as to the reliability of the evidence on the matters deposed to by Ms Murray In any event the sum claimed in the summary summons and the sum for which judgment was given in the High Court is less albeit only by 3 803 63 than the amount actually due as shown by the statement print offs 12 The other matter which by virtue of Order 37 rule 1 was required to be dealt with in the grounding affidavit of Ms Murray is averred to at para 20 of Ms Murray s affidavit She averred that she had been advised by the Solicitors for the Bank Ivor Fitzpatrick that the O Briens do not have a defence to the proceedings either bona fide or at law and further that any appearance entered was for the purpose of delay 13 I am satisfied that in the absence of any assertion by or on behalf of the O Briens that the sum which Ms Murray as a senior employee of the Bank has deposed is due and owing by the O Briens to the Bank is not due the High Court judge was entitled to conclude on the basis of Ms Murray s affidavit that there was a sufficient evidential basis for giving the Bank liberty to enter final judgment against the O Briens Ms Murray could and did swear positively to the facts showing that the plaintiff was entitled to judgment in the sum claimed The Bank did not have to rely and was not relying on an entry in a banker s book being admitted in evidence to establish the O Briens indebtedness to it in the sum claimed in accordance with the provisions of the Act of 1879 as amended so that the necessity to comply with the provisions of ss 4 and 5 of the Act of 1879 as amended did not arise Accordingly the submission made on behalf of the O Briens that there was no admissible evidence before the High Court proving the indebtedness of the O Briens to the Bank is rejected Moreover in my view counsel for the O Briens has not pointed to any relevant authority which suggests that this Court should form a contrary view Authorities cited 14 Only one decision of this Court in relation to the application of the provisions of the Act of 1879 as amended was referred to in argument That was Criminal Assets Bureau v Hunt 2003 2 I R 168 the CAB case There the issue as to admissibility of evidence was one only of a number of issues addressed in the judgment of the Supreme Court delivered by Keane C J with whom the other four

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  • person doing the act admissions against interest are unlikely to be false entries in public registers will tend to be corrected if inaccurate statements on the point of death may have a solemnity equal to or greater than the taking of an oath and recordings in the course of duty of facts observed by deceased persons are not to be excluded simply because of the absence of the note taker from court Analysing the exceptions tends towards the conclusion that the law has admitted them because the unreliability considered to haunt evidence by report and that the taint of uncertainty over hearsay evidence itself may be displaced where the reliability of the testimony is so obvious as to be unarguable As Glanville Williams records at page 208 209 the 1945 1946 Nuremberg Trials satisfactorily dispensed with the rules of evidence in favour of a single rule that the tribunal should admit any evidence which it deems to have probative value leaving the weight to be attached to such evidence as a matter for the tribunal 12 On this appeal there has been no apparent request for the creation of any new exception to the rule against the admissibility of hearsay evidence In this case such is not necessary The Bankers Books Evidence Act 1879 as amended provides at section 4 for the admissibility of a copy of an entry kept in the books of a bank but it also provides that same should not be admissible unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business and that the book is in the custody and control of the bank Such proof may be given by a partner or officer of the bank and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits A further condition is set out in section 5 which provides that the copy shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct Such proof shall be given by some person who has examined the copy with the original entry and may be given either orally or by an affidavit sworn before any commissioner or person authorised to take affidavits Section 131 of the Central Bank Act 1989 updates section 5 to enable reception in respect of non legible formats in other words computer records Section 191 of the National Asset Management Agency Act 2009 is among provisions extending this parent legislative privilege to the officials of the organisation which took over the disastrous debt burdens of our banks after 2008 operating in their stead as what has become known as a bad bank 13 Banks however are not the only commercial organisations which lend money Credit is the inescapable component of business Trust that monies advanced or goods delivered will be honoured by repayment is essential to the relationships of honour which keeps the wheels of commerce oiled It would be extremely odd for there to be a rule in favour of banks and the admissibility of their records and further but for there to be no assistance as to the proof of debt for any other organisation or person offering goods or services in the Irish market It is to be remembered that in the 1870s what was then known as the best evidence rule to the effect that proof must be offered in accordance with the best evidence available was then current Hence copies could not be made of gigantic banking ledgers but rather they had to be produced in court The best evidence rule has since that time weakened and ultimately it has ceased to exist in favour of a test as to whether the evidence offered is admissible or inadmissible Whether there might be better evidence of an event or transaction merely goes to the weight that might be given particular testimony No one now argues that because there is a video recording of a transaction that the participants so recorded cannot give evidence whereas it was once argued that a note as to what tombstone read could not be admitted because the tombstone had not been physically produced 14 Whereas case law from the High Court has been urged on both sides as establishing sound reasoning in favour of the admissibility of business records or against that proposition in banking cases and where some of that case law seems to have been reasoned upon the nature of the proceedings being on affidavit or the applications being interlocutory or the records being at one remove from the organisation creating same it is unnecessary to proceed to any analysis of those cases see Mooreview Developments Ltd v First Active Plc 2010 IEHC 35 2011 1 IR 117 and Bank of Scotland v Fergus 2012 IEHC 131 and Governor and Company of Bank of Ireland v Keehan 2013 IEHC 631 which are cases in favour of the admissibility of such records whereas Bank of Scotland Plc v Stapleton 2013 3 IR 63 references the requirement to comply with the Bankers Books Evidence Act 1879 and Ulster Bank Ireland Ltd v Dermody 2014 IEHC 140 took a similar approach No comment is made as to the reasoning of any of these cases They are not now before this Court on appeal 15 Since R v Christie 1914 AC 545 it has generally been held that statements made in the presence of an accused are always admissible in evidence It follows that statements made in the presence of a party to civil proceedings may be admitted in evidence also It would be facile to translate the French expression Qui ne dit mot consent into a rule that failure to deny an accusation amounts to an admission The law does not say that in all circumstances In fact an ancestral adage comes closer Is ionann toil s éisteacht silence can be not must be acquiescence in a statement 16 Silence as acceptance requires a nuanced analysis of particular circumstances before any instance of it can be admitted to the category of exception to the hearsay rule under the rubric of admissions Nonetheless the principle is supported by strong authority In court cases it must be remembered that the particular circumstances are dependent upon procedural safeguards In the Rules of the Superior Courts 1986 particularly Order 2 and Order 26 and in the rules which have generally been applied to practice indicate default of answer as a means to proceed to judgment for a plaintiff Further it would have become impossible for the courts to dispose of cases without a rule of pleading that what is not denied from an allegation in a statement of claim is accepted Procedurally the requirement that persons should be personally served with legal proceedings absent an order of a court for substituted service operates to ensure that there is proof of awareness that allegations are being made which can result in such serious consequences as orders in damages or for injunctions In the absence of an appearance where liquidated debt is involved the party issuing a summary summons may move to judgment in the Central Office of the High Court When appearance is entered the matter must become before the Master of the High Court He has administrative but no judicial power In the event of a contest of fact the matter must go away from the Master and up before the High Court for decision Where a credible defence is disclosed through an opposing affidavit the matter must be remitted for plenary hearing Here it is claimed on behalf of the defendants appellants that it is enough to simply deal with sworn testimony even that which has all the indications of being based in fact and in reason by merely arguing that a party has an entitlement to make no denial 17 Of themselves the documents exhibited in the affidavit of Mary Murray carry indications of reliability These are bolstered by her sworn evidence coming as it does from a position where she has had the means of knowledge to support what she says Of those documents perhaps the most important is the letter of demand That letter was sent to the defendants appellants and it was never replied to The sworn affidavit was furnished to the legal representatives of the defendants appellants and it was never replied to Both the sworn and the unsworn documents amount to the same thing a party is making an allegation that money has been borrowed and that a debt has not been repaid which is now due for payment Depending upon the particular circumstances an inference can be drawn where a reasonable person would feel compelled to issue some form of denial whereby the absence of contradiction can amount to the acceptance of the contrary case in other words an admission against interest This principle is based on sound authority It is also one of the primary exceptions to the rule against hearsay 18 In Bessela v Stern 1877 2 CPD 265 a breach of promise to marry case a response by the defendant that he would give the plaintiff money to go away by reason of it not being a denial was accepted as evidence where the allegation made was You always promised to marry me and you don t keep your word In the Court of Appeal at page 272 Branwell LJ stated A claim is made on a man in respect of goods sold and delivered and he does not deny it If a statement is such that a denial of it is not to be expected then silence is no admission of its truth but if two persons have a conversation in which one of them makes a statement to the disadvantage of the other and the latter does not deny it there is evidence of admission that the statement is correct Brett LJ agreed with this statement at page 272 thus The defendant by his silence admits what the plaintiff said that the defendant always promised to marry her It was not necessary that the evidence should show a mutual promise to marry The evidence need not prove a promise all that is wanted is corroborative evidence of it In Wiedemann v Walpole 1891 2 QB 534 another action for breach of promise to marry Lord Esher MR referenced at pages 537 538 commercial usage stating T here are cases business and mercantile cases in which the Courts have taken notice that in the ordinary course of business if one man of business states in a letter to another that he has agreed to do certain things the person who receives that letter must answer it if he means to dispute the fact that he did so agree So where merchants are in dispute one with the other in the course of carrying on some business negotiations and one writes to the other but you promised me that you would do this or that if the other does not answer the letter but proceeds with the negotiations he must be taken to admit the truth of the statement But such cases are those wholly unlike the case of a letter charging a man with some offence or meanness 19 Thus whether a failure to answer an allegation would make what otherwise might be hearsay into an admission is entirely dependent upon the factual circumstances In R v Christie at pages 563 565 Lord Reading reiterated the basic rule thus A statement made in the presence of one of the parties to a civil action may be given in evidence against him if it is relevant to any of the matters in issue And equally such a statement made in the presence of the accused may be given in evidence against him at his trial In general such evidence can have little or no value in its direct bearing on the case unless the accused upon hearing the statement by conduct and demeanour or by the answer made by him or in certain circumstances by the refraining from an answer acknowledged the truth of the statement either in whole or in part or did or said something from which the jury could infer such an acknowledgement for if he acknowledged its truth he accepted it as his own statement of the facts Lord Moulton at page 559 was in agreement to the same effect There remains the second ground namely that it is evidence of a statement made in the presence of the accused and of his behaviour on that occasion Now in a civil action evidence may always be given of any statement or communication made to the opposite party provided it is relevant to the issues The same is true of any act or behaviour of the party The sole limitation is that the matter thus given in evidence must be relevant I am of opinion that as a strict matter of law there is no difference in this respect between the rules of evidence in our civil and in our criminal procedure 20 Analysing the various circumstances under which a failure to deny particular and detailed allegations based upon a pre existing commercial or other relationship and backed up by correspondence is a matter for the application of this principle to particular circumstances Cross Tapper on Evidence 11th Edition 2007 at page 42 affirms the need for close analysis before admission through silence is accepted as testimony A thin stream of civil cases has adhered to the proposition that failure to answer an allegation is capable depending upon the circumstances of amounting to evidence against the silence party The principle underlying the cases in which reliance has been placed on the maxim res ipsa loquitur is based on the importance of the absence of an explanation The necessity for close analysis is reaffirmed by Heydon and Ockelton in Cases and Materials on Evidence 4th Edition 1996 at page 147 148 In cases where the inference may be drawn the test is whether a denial could reasonably be expected in the circumstances The circumstances of a business relationship commonly permit the inference to be drawn a defendant s silence in the face of correspondence becomes much more relevant in business cases than in affiliation cases Regard must be paid to the status of the accuser Another factor is the situation of the party charged and the circumstances surrounding the charging When will an indignant reply be expected One test is the seriousness of the accusation e g a charge of incest by a daughter to her father R v Power 1940 QSR 111 or a breach of promise of marriage Bessela v Stern 1877 2 CPD 265 CA Another is the solemnity of the form of the accusation so an executor s failure to dispute an affidavit alleging that he owes the estate money may be an admission Freeman v Cox 1878 8 ChD 148 This principle is also referred to in Phipson on Evidence 18th Edition 2013 The mere failure to answer a letter or object to an account will not necessarily imply an admission of its contents But it is otherwise if the letter is sent under circumstances which entitle the writer to an answer or where it is the ordinary practice of people to reply 21 Thus analysing whether a failure to respond in the face of an accusation can amount to a declaration against interest must depend upon a myriad of factors What follows cannot be definitive but merely indicative an analysis of the nature of the relationship between the parties is essential the circumstances under which an allegation is made must be taken into account what is solemn being different from what is social and from what is jocular or mischievous the nature of what is claimed may amount on the one hand to a bare allegation or on the other to an apparently definitive statement backed up by documentary proof but finally the test must be that a failure to respond in circumstances when a denial would clearly be required would amount in terms of the conduct of reasonable people to an admission 22 None of this is to change or in any way alter the rule that accepting that which is said in the presence of a party to civil proceedings or someone who is the accused in a criminal trial is admissible as such This case 23 Civil proceedings for the enforcement of debt are an exercise of the constitutional right to litigate Such a case carries procedural solemnity and is attendant with safeguards as to service Within that context the swearing of an affidavit and its service in court proceedings which make allegations that a sum is due can be accepted in the absence of denial where the form and the content of what is deposed to and the exhibits supporting it carry sufficient indications of reliability Part of the matrix of facts to be considered is whether the documentary evidence establishes a relationship whereby the obligation to pay for goods or services or to repay a debt are properly referenced and exhibited In that regard the procedural safeguards of court proceedings as to service coupled with the ability to make an appearance and to formally deny the existence of a debt that where otherwise to contest liability to pay by reference to a collateral contract or some defect in goods and services or some other appropriate defence may give rise to an ability in the court to act against the party failing to make any denial As a matter of law where circumstances indicate that a reasonable person would have responded to an allegation in the context of an appropriate commercial relationship where money is due but does not so respond an admission may be set up The court may act in that situation 24 In that context it cannot be said that the judgment of Hedigan J is in any way at fault In the circumstances this appeal should be dismissed An Chúirt Uachtarach The Supreme Court Record number 2013 2746 S Appeal number 114 2014 MacMenamin J Laffoy J Charleton J Between Ulster Bank Ireland Limited Plaintiff Respondent And Rory O Brien Danny O Brien and Michael McDermott Defendants Appellants Judgment of Mr Justice Charleton delivered on Wednesday the 16th day of December 2015 1 This appeal concerns the admissibility of hearsay evidence within the particular commercial context of default on a bank loan Background 2 By a summary summons issued on the 26th August 2013 the plaintiff respondent Ulster Bank sought judgment against Rory O Brien Danny O Brien and Michael McDermott the defendants appellants in the sum of 888 920 89 An appearance was entered on behalf of the defendants apart from Michael McDermott on the 19th September 2013 Judgment was sought against Michael McDermott in the Central Office of the High Court In accordance with the procedure chosen by Ulster Bank to pursue its claim a notice of motion was issued on the 16th October 2013 returnable before the Master of the High Court seeking judgment in that regard against the other two alleged debtors The notice of motion was supported by an affidavit of Mary Murray sworn on the 15th October 2013 describing herself as Senior Relationship Manager with the Global Restructuring Group of Ulster Bank All quotes in this judgment are as written and uncorrected as to grammar including the clear misuse of lower or upper case letters That affidavit purported to prove the loan to the defendants appellants by exhibiting relevant correspondence extracts from computer records and a letter of demand Her affidavit was not replied to by the defendants appellants just as the letter of demand addressed to each of them prior to the issue of proceedings remained unanswered On the 14th November 2013 the Master of the High Court refused to grant summary judgment for Ulster Bank but he acceded to an argument on behalf of two of the defendants appellants Michael McDermott not then being represented that the affidavit constituted inadmissible hearsay evidence Consequently it was ordered by the Master that the said Motion be and the same is hereby dismissed and that Ulster Bank pay the costs of Rory O Brien and Danny O Brien That order was appealed by notice of motion dated the 18th November 2013 and it came on for hearing before Hedigan J on the 3rd March 2014 in the High Court The appeal was allowed and it was ordered that Ulster Bank should recover the sum claimed against the first and second named defendants appellants and it was further ordered that they should pay the costs of the plaintiff in the High Court and of the motion before the Master The agreed note of the ex tempore judgment of Hedigan J reads The Affidavit of Ms Mary Murray sworn on the 15th day of October 2013 and the averments therein referring to entries in the books of the Plaintiff bank did not amount to inadmissible hearsay The Deponent s averments were similar in form and content to those frequently appearing in Affidavits grounding such applications and they provide a sufficient evidential basis for granting the Plaintiff s application for liberty to enter final judgment against the Defendants The error contained in the Deponent s Affidavit highlighted by Defence Counsel did not amount to grounds for denying the relief sought Affidavits are frequently presented to the Court which contain minor technical errors The Defendants were not denying that the sums claimed were owed by them There was little benefit to the Defendants in stringing things out further and in the circumstances the Court would grant the Plaintiff bank the relief sought C osts of the motion and of the earlier Master s hearing are awarded to the plaintiff 3 A stay of five weeks was put on the consequential monetary judgment by order of the High Court dated the 2nd April 2014 By notice of appeal dated the 13th March 2014 on behalf of the first and second named defendants appellants it is asserted that the trial judge erred in the admission of hearsay evidence and that he also erred in not finding that Ulster Bank had failed to comply with sections 4 and 5 of the Bankers Books Evidence Act 1879 as amended proving that the book entry produced by the Bank is one of the ordinary book entries maintained during the activities of the Bank and is in the continuing custody of the Bank and the entry was made in the ordinary course of business and a copy of the entry sought to be adduced as evidence has been examined against the original in the custody of the Bank and is correct While other points are referenced in the notice of appeal it is the hearsay point alone which has been argued The proofs offered by Ulster Bank 4 As the trial judge indicated the proofs offered by Ulster Bank are similar to those which have apparently been accepted by the courts in thousands of other loan cases as establishing proof of debt and of default in payment Be that as it may if the form and content of the proofs are such that they are inadmissible hearsay and they must be excluded the appeal must be allowed Consequently the averments in that affidavit and the correspondence exhibited should be closely examined 5 Mary Murray averred that she made the affidavit with the authority and consent of the Bank in order to ground its application for liberty to enter summary judgment and that she made it from facts within my own knowledge and from a perusal of the Bank s books and records save where otherwise appears and where so otherwise appearing I believe the same to be true and accurate The affidavit records that judgment was sought pursuant to two loan facilities agreed on the 23rd July 2004 and on the 14th December 2005 She does not say that she was personally present when those agreements were entered into and nor does she say that she is familiar with the signatures of the borrowers Even if she had been present some of the signatures do not amount to a signature at all but to an unidentifiable squiggle The first letter exhibited is dated the 22nd July 2004 and it records an offer to the borrowers to assist with the purchase of ten acres of development land in County Offaly The letter as exhibited shows the names of the defendants appellants as borrowers and it shows the loan as the sum of 329 000 for a term of two years but repayable on demand An examination of the exhibited letter shows a signature by Dave Kavanagh apparently a manager in Business Banking dated signatures from Danny O Brien and Rory O Brien and a dated squiggle from Michael McDermott Terms and conditions are appended The second letter exhibited is dated the 8th December 2005 and it records an offer to the same borrowers in the sum of 471 000 to assist in the purchase of twelve acres of development land in County Offaly An examination of the letter shows the same signatures as the previous letter Conditions were as previously The next exhibit to this grounding affidavit is a letter of demand from Ulster Bank to the defendants respondents dated the 1st February 2013 That letter precisely references the facilities and loans and it continues We would advise you that the Facilities are in arrears and in addition you are in breach of the terms of the Facility Letters We now hereby demand immediate repayment of the Facilities together with accrued interest and all other amounts outstanding under the Facility Letters The outstanding amount of each of the Facilities as at 1st February 2013 is as follows 2004 Facility The outstanding amount of the Facility as at the date of this demand including unpaid and accrued interest to the date of this letter of demand is 353 053 91 Interest and charges as provided for in the 2004 Facility Letter will continue to accrue until all sums owing have been paid in full 2005 facility The outstanding amount of the Facility as at the date of this demand including unpaid and accrued interest to the date of this letter of demand is 500 431 49 Interest and charges as provided for in 2005 Facility Letter will continue to accrue until all sums owing have been paid in full The Facilities Additional unpaid accrued interest in respect of the Facilities to the date of this letter of demand is 19 374 58 We further give you notice that if the whole of the above sums are not paid forthwith we reserve the right to exercise without further notice to you all and any of the powers available to us by law or under the security provided to us in respect of or in connection with the Facilities 6 That letter was signed by Mary Murray as to facts of which she would have had personal knowledge and by another bank manager Additionally there were three computer printouts as to the loans Whereas before the High Court and before the Master some argument was made as to a small calculation error this has not been pursued on appeal 7 The affidavit of Mary Murray as well as exhibiting the documents precisely describes them and the relevant interest rates The affidavit states that the loan facilities were accepted by each of the defendants and drawn down in full and it states the relevant interest rates at the time The affidavit also details the demand to repay the monies and that each of the defendants appellants have failed neglected or refused to discharge the remains due and that there is no defence to the proceedings All of this is standard fare in an affidavit seeking judgment for a liquidate amount in the High Court 8 Concisely put the argument advanced on this appeal on behalf of the defendants appellants is that this affidavit with its exhibits does not amount to any admissible proof that either the ostensible borrowers were loaned the money drew down the money ran interest up at the rate specified had a demand made of them did not answer that letter or did not repay the money It is said on their behalf that in the sphere of criminal law the Criminal Evidence Act 1992 reformed the law making business records admissible at criminal trials including maps plans graphs photographs and information on computer or on microfilm but puzzlingly this reform was never extended to the proof of debts On the other hand banks had an exception to the hearsay rule which they were entitled to exercise namely that mentioned in the notice of appeal and as this particular bank did not use the Act of 1879 there was a total failure of proof The hearsay rule 9 A statement made by a person other than one which is made by a witness while giving oral evidence in proceedings is inadmissible as evidence of any facts stated Hence the witness cannot depose as evidence facts that are unknown to the witness but merely recounted by the witness from information from an absent individual A witness cannot bolster their own testimony by calling other witnesses to depose that they had been told the same facts to which they testify the rule against self corroboration as it is called but which is part of the hearsay rule Records made in the course of business are not for that reason an exception to the hearsay rule Of course if made in or around the time of events in question whether in the course of a business or any other transaction a witness may refresh memory by reference to such contemporary records Despite apparent inherent reliability no entitlement to overstep the hearsay rule is created simply because records were made by someone in the course of business Thus in England in Myers v Director of Public Prosecutions 1965 AC 1001 the House of Lords ruled that the exceptions to the hearsay rule could not be expanded on the basis that the evidence sought to be given is peculiarly reliable or is the best available While our courts have taken no such rigid position there has been little sign that the principles as to the inadmissibility of hearsay evidence inherited in 1922 are subject to change on the basis of reliability Indeed in The People DPP v Prunty 1986 ILRM 716 it was held by the Court of Criminal Appeal that an official from the Department of Posts and Telegraphs was not entitled to give evidence that he had looked up the relevant internal records to discover that a particular telephone number was assigned to a particular public phone box from which ransom demands had been made in that kidnapping case Inherent reliability as a ground for admission was not argued on that appeal however The hearsay rule it must be noted has limitations In Cullen v Clarke 1963 IR 368 at page 378 Kingsmill Moore J indicated In view of some of the arguments addressed to the Court it is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness There is a general rule subject to many exceptions that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert This is the rule known as the rule against hearsay 10 As he noted hearsay is subject to a myriad of exceptions many of which are discussed in the classic judgment just quoted and which are also to be found in digestible form in Irish Cases on Evidence 2nd Edition 1982 by JSR Cole and Evidence by McGrath 2nd Edition 2014 The origins of the exceptions while most often lost in time as to their justification share certain characteristics The edition of Archbold s Criminal Pleading Evidence and Practice London 1922 current on Irish independence states the justification for the hearsay rule at page 370 as being a what the other person said was not put upon oath and b the party who is to be affected by it had no opportunity of cross examining him Glanville Williams in his The Proof of Guilt A Study of the English Criminal Trial 3rd Edition 1963 offers a slightly different justification at page 196 These then are the two principal justifications for the hearsay rule the desirability of having the witness personally present in court where his demeanour can be observed and his story can be tested by cross examination by the other party or by trained counsel of that party s choice and the risk that a story when passed on may become garbled 11 Nonetheless experience over centuries has indicated that in particular circumstances declarations accompanying actions may explain the mind of the person doing the act admissions against interest are unlikely to be false entries in public registers will tend to be corrected if inaccurate statements on the point of death may have a solemnity equal to or greater than the taking of an oath and recordings in the course of duty of facts observed by deceased persons are not to be excluded simply because of the absence of the note taker from court Analysing the exceptions tends towards the conclusion that the law has admitted them because the unreliability considered to haunt evidence by report and that the taint of uncertainty over hearsay evidence itself may be displaced where the reliability of the testimony is so obvious as to be unarguable As Glanville Williams records at page 208 209 the 1945 1946 Nuremberg Trials satisfactorily dispensed with the rules of evidence in favour of a single rule that the tribunal should admit any evidence which it deems to have probative value leaving the weight to be attached to such evidence as a matter for the tribunal 12 On this appeal there has been no apparent request for the creation of any new exception to the rule against the admissibility of hearsay evidence In this case such is not necessary The Bankers Books Evidence Act 1879 as amended provides at section 4 for the admissibility of a copy of an entry kept in the books of a bank but it also provides that same should not be admissible unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business and that the book is in the custody and control of the bank Such proof may be given by a partner or officer of the bank and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits A further condition is set out in section 5 which provides that the copy shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct Such proof shall be given by some person who has examined the copy with the original entry and may be given either orally or by an affidavit sworn before any commissioner or person authorised to take affidavits Section 131 of the Central Bank Act 1989 updates section 5 to enable reception in respect of non legible formats in other words computer records Section 191 of the National Asset Management Agency

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  • is highly fact sensitive and depends upon an evaluation of all the relevant factors see Belamy and Child European Competition Law 6th edition London 2008 paragraphs 10 058 A useful test for finding an abuse of a dominant position is that set out by the Court of Justice of the European Union in Case C 27 76 United Brands Company and United Brands Continental BV v Commission 1978 ECR 20 Paragraph 248 thereof makes clear that the imposition by an undertaking in a dominant market position of unfair purchase or selling prices may be such an abuse At paragraph 249 the question is asked as to what use has been made by the dominant undertaking to reap trading benefits which it would otherwise have not have reaped if there had been normal and sufficiently effective competition In this instance Galway County Council set charges at a lower rate through applying a subsidy That is not an abuse Galway County Council is not gaining any trading benefit The nature of the subsidy is that a lower price is charged to Island Ferries passangers for the use of the harbour than would be the case had there been no subsidy As exemplified at paragraph 253 of the United Brands case other ways may be devised of selecting the rules for determining whether the price of a product is unfair In terms of a working overall test however that set out at paragraph 252 has been generally applied The questions therefore to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive and if the answer to this question is in the affirmative whether a price has been imposed which is either unfair in itself or when compared to competing products 57 In considering any question as to abuse by a dominant player in the market a primary step is to determine the market What therefore is the market It is only in the context of the definition of the circumstances in which consumers may be attracted to a product or service that abuse of a dominant position may be found The submissions made on behalf of Island Ferries as to what that market was do not convince A market may be as small as cremation services for the dead in Dublin or in Florence or it may be as extensive as coco supply or banana sales throughout the entire European continent Any such market must however be realistically defined A market may be delineated in its parameters as to the product offered to consumers firstly Selling kiwis may in some circumstances be distinguished from selling bananas as the fruits have different qualities even though both may be sold through fruit merchants Clearly different from the point of view of consumers and as to the trading suppliers would be markets in fresh fruit and canned fruit Secondly there is the place in which the product or service is sold Books may be sold second hand in a local shop or over the internet The latter choice increases the marketplace Fact dependency may reduce that market where postage and packaging is expensive A person who can only access a service by travelling to a particular place is likely to have a limited choice for instance a person on holidays looking for a day s diversion will likely limit their choice to what can readily be accessed at a reasonable cost Lastly the time of offering the service may also be important as offering fresh fruit imported out of season differs from the market for seasonal products This case is about using a harbour on a particular island which serves as the main port of call there and for two nearby islands Whereas eloquent attempts were made in argument by counsel for Island Ferries to widen out the market to ostensibly embrace tourism products on the western seaboard of Ireland that is not the market Tourists want to visit the Aran Islands because of what that journey is expected to offer Like any attraction tourists will work out the price the difficulties in travel what may hopefully be experienced at the destination and one supposes whether what is involved is what people call the trip of a lifetime or lesser variants It lacks reality to compare cliffs in Clare or abbeys in Mayo and to include them in the relevant market for competition law purposes These are different journeys because the attractions are different The market overall may be tourism products but that can embrace Dublin attractions or Shannon river cruises This market therefore concerns people who want to bring tourists to the Aran Islands and thus have to access a harbour facility there On no realistic model can that service be regarded as without value or capable of being accessed for no charge 58 Having so defined the market the next issue is the abuse alleged in terms of the charge What is particularly relevant here is firstly that the price charged for the use of the harbour is precisely the same whether it is charged to Island Ferries or to any rival ferry company or to flying boats or to large visiting cruise ships It has been correctly argued that the local authority as the sole operator of a large harbour on the Aran Islands has an especial responsibility to behave so as to maintain competitive equilibrium in the relevant market It must be remembered however that a finding that an undertaking has a dominant position is not itself a recrimination but simply means that irrespective of the reasons for which it has such a dominant position the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market Case C 322 81 Michelin v Commission 1983 ECR 3461 at paragraph 57 Here even ignoring the reasonable level of the cost that especial responsibility is fulfilled by the application of a subsidy for the use of the harbour by Galway County Council that cannot be justified on economic grounds but which reduces the costs for all consumers The nature of dominance can be such that the very presence of the undertaking in the market weakens the degree of competition with the consequent effect of hindering entry the development of products and alternative products Case C 85 76 Hoffmann La Roche Co AG v Commission 1979 ECR 461 This cannot be the case here Without the provision free of charge of the harbour by the State to the islands Galway County Council would not be in a position to manage the harbour at all 59 As part of the analysis as to whether there has been distortion of competition through abusing a dominant position the position of other economic operators who might potentially enter the market should also be considered As the European Court stated in Case C 322 81 Nederlandsche Banden Industrie Michelin NV v Commission 1983 ECR 3461 at 37 the competitive conditions and the structure of supply and demand must also be taken into consideration It stretches credibility to imagine on the supply side that some other economic operator might either build such a harbour for profit by charging for use or might as to services proffer any viable proposition to take over its management on a commercial basis Nor would any economic operator on the supply side choose to pursue such an aim as the supply of harbour services on the Aran Islands on the basis of loss year after year In reality that would be the effect should Galway County Council withdraw its subsidy One may also usefully look to the only other realistic alternative which is that the harbour should be left unregulated This would be a bizarre alternative in the context of a quarter of a million passenger movements From the point of view of the potential profitability of the market tourists would not be likely attracted to chaos or to the consequences of a bad name developing for this tourism product on social media sites Thus it is relevant both that the economic operator accused of the abuse of dominance actually operates for social reasons at a loss and that no other undertaking would assume the trade in question in this market for that very reason Inhibitions to entry and expansion in the market on the demand side are nothing to do with the modest charge for use by ferry boats of the harbour It is logical to infer that new entrants into the market for ferry services are in no way inhibited by a charge of 0 80 per passenger but rather are more likely to hesitate in consequence of the economies of scale needed to source ferry boats and maintain offices and trained staff 60 The summit of the argument on behalf of Island Ferries resolves to one of exclusionary pricing Monopolies can certainly operate so as to shut out others through the lowering of prices or through tying products to the acquisition of other services or through exclusionary excessive pricing These are merely examples abuse within the context of the classic test of a dominant undertaking behaving to an appreciable extent independently of the market While Galway County Council has an effective monopoly it is not to be condemned for that provided its position is not an abuse of the market in other words the setting up of a situation that harms consumers Rather on these set of facts it is the opposite No competition is foreclosed or even warned off here Competition between ferry operators is enhanced through a low individual rate of charge for accessing a modern harbour The market is made certain as to costs and all consumers of harbour services for ferrying tourists are treated equally In Dunleavy Competition Law A Practitioner s Guide Dublin 2010 a useful summary of how exclusionary abuses can operate is set out at page 256 thus Exclusionary abuses include predatory pricing exclusive purchasing obligations fidelity rebates tying and bundling refusal to supply and margin squeeze A common feature of exclusionary conduct although not a necessary requirement for a finding of abuse involves the dominant undertaking reserving to itself an activity or market that is ancillary to that in which it holds a dominant position thereby foreclosing competition in the ancillary market 61 Throughout the argument in relation to the two sets of appeals in relation to both harbour charges for Ros a Mhíl and for Cill Rónáin it has been continually asserted that price is the sole determinant in relation to competition law That submission however while attractive is not supported by the relevant authorities In every economic analysis the value of the product to the consumer as well as the cost of producing it is relevant to pricing and in particular as to whether a price charged is fair exploitative or inhibitive Further any submission based on the supposed unavailability of value as a relevant factor is not grounded in authority In Scandilines Sverige AB v Port of Helsingborg 2006 CMLR 1224 the Commission in a decision signed by Commissioner Monti analysed the tests set out above from the United Brands case in the context of differing charges for the use of the same port by ferry services and cargo shipping Of themselves different rates of charge are not necessarily abusive At paragraph H7 the decision states It was important to note that the decisive test in United Brands focused on the price charged and its relation to the economic value of the product While a comparison of prices and costs which revealed the profit margin of a particular company might serve as a first step in the analysis if at all possible to calculate this in itself could not be conclusive as regards the existence of an abuse under Article 102 One of the best comparisons may be with substitutable products in the same market Price of itself is not determinative Where as here there are no substitutable products the price charged for the goods or services in other markets may be compared Lastly value to consumers by reference to price may be of assistance Here however the reality is inescapable that without the free provision of a harbour by the Government there would be no safe means for ferry boats to access Cill Rónáin for the mass tourism market While that is irrelevant since Galway County Council obtained that harbour outside the parameters of the economic analysis applicable here without a considerable annual subsidy the price for use of the harbour would be considerably higher Hence it cannot be said that the local authority is in any way abusing its dominant position in controlling the harbour on Inis Mór Result 61 From 2004 the harbour charges at Ros a Mhíl increased markedly for the use of ferry services to the Aran Islands Charges had however not increased for over 10 years The Minister was entitled to increase charges provided that this was done in a manner which was fair proportionate and avoided any arbitrary imposition That is what the Act of the Oireachtas under which he had power to set charges required As found by the High Court on the particular facts of this case the charges imposed were selected for the reason that a financial deficit in the finances of the 5 fishery harbours in Ireland had to be made up Charges in Ros a Mhíl were thus made in order to eliminate a deficit The selection of these charges was not fair because the purpose for which they were imposed was not in the legislation from which the Minister derived his power In addition as the High Court found the social responsibilities pursuant to Government contract of Island Ferries in maintaining communications with the Aran Islands had not been taken into account in the pricing Other factors found by the High Court as undermining the validity of the charges were soundly based on evidence What happened however was a mistake in the setting of the charges and not any malicious decision Hence there was no misfeasance in public office One of Island Ferries boats was seized under the relevant bye laws because the new charges had not been paid Given that the charges were invalid that seizure was also wrong It was an actionable trespass In consequence the reasoning of the High Court upheld on this appeal and there is no basis upon which this Court could interfere with the judgment of Cooke J Damages as set were calculated in accordance with legal principle and are not to be disturbed 62 From 2012 everyone ferrying passengers into Cill Rónáin on Inis Mór has been subject to a charge of 0 80 per individual Previously there had not been a charge for landing passengers there but the previous harbour had not been fit for purpose The State constructed a new harbour finishing work in 2011 for the use of all visitors to the Aran Islands This work was undertaken to secure social inclusion In no way has any State authority sought to recover through passenger charges the sum involved which was close to 50 million Instead the authority responsible which is Galway County Council after intense debate decided to impose a passenger use charge as a way of partially funding the year to year running costs of this new facility These costs are an essential expenditure to ensure the harbour is run and maintained properly Not all that expense is recovered from users Galway County Council subsidises the harbour running costs to the tune of 70 000 per year On the facts as found by the High Court the charges on visitors using the harbour are both modest and reasonable Galway County Council had ample statutory basis for imposing the charge Any difference between the charge to visitors using the harbour and that of fishermen and cargo deliveries occurs within a particular factual matrix which is within the statutory powers of the local authority to take into account There are differences in the two cases that have been heard together on this appeal although what was challenged was harbour charges at two ends of the same journey Firstly charges were wrongly increased at Ros a Mhíl in order to make up a deficit in funding but the necessity to charge for the first time in Cill Rónáin arose because a new harbour had been constructed and thus required income for its operation Secondly charges on landing at Cill Rónáin apply on a per passenger basis while those at Ros a Mhíl are structured differently Thirdly the Ros a Mhíl charges were imposed on an arbitrary basis while Galway County Council set the charges for Cill Rónáin through a process of debate and analysis within the scope of their function Fourthly there is no question of Galway County Council making up a deficit through unfair charging the substantial local authority subsidy has reduced the charges for all users passengers freight carriers and fisherfolk Finally ample authority exists for the imposition of the particular charges by Galway County Council for the use of its harbour at Cill Rónáin unlike the way charges were set for Ros a Mhíl 63 It was accepted on this appeal that Galway County Council was an undertaking exercising a dominant position in the supply of harbour services on the Aran Islands It is not wrong in law to exercise a dominant position under the Competition Act 2002 What is forbidden is the exploitation of consumers through monopoly or other unfair forms of pricing Such misuse of a dominant position can involve the artificial suppression of competition through abusive practices On the facts as found by the High Court there was no abuse of any dominant position by Galway County Council Instead the subsidy of the harbour service means that no other supplier would be likely to take over the running of the harbour if as is even more unlikely that extremely valuable asset were to be given to a potential competitor free of charge There is thus no abuse by the local authority of its dominant position 64 There is no basis therefore upon which any of these appeals can succeed The order of the High Court in both sets of cases should thus be affirmed An Chúirt Uachtarach The Supreme Court Denham CJ O Donnell J McKechnie J Dunne J Charleton J Record number 2005 3195P Appeal numbers 25 and 391 2012 Between Island Ferries Teoranta Plaintiff Respondent and The Minister for Communications Marine and Natural Resources Ireland and the Attorney General and the Minister for Agriculture Fisheries and Food Defendants Appellants Record number 2012 47JR Appeal numbers 180 and 181 2014 Between Island Ferries Teoranta Appellant Applicant and Galway County Council Respondent Judgment of Mr Justice Charleton delivered on Tuesday 15th of December 2015 1 This judgment in these two cases concerns the legitimacy of public charges for the use of two harbours by ferry boats One case was taken because of an increase in such charges 25 and 391 of 2012 that in which there are State respondents The other arose because of the imposition of harbour charges for the first time 180 and 181 of 2014 that in which Galway County Council is the respondent Both sets of cases concern a journey between Ireland or Éire and one of her offshore islands namely Inis Mór This is the largest of the Aran Islands lying to the west of Ireland in County Galway Precisely engaged are the two harbours from which Island Ferries run a passenger service The harbour on the mainland is located at Ros a Mhíl on the west coast of Galway and is the responsibility of the State through the appellant Minister That on Inis Mór is at Cill Rónáin the largest town on the Aran Islands a harbour from which many boats travel on to the other Aran Islands and is the responsibility of Galway County Council In 2009 the designated responsibility for Ros a Mhíl changed from the Minister for Communications Marine and Natural Resources to the Minister for Agriculture Fisheries and Food References herein in respect of Ros a Mhíl are to the designated Minister as of the appropriate time These appeals arise from three judgments of Cooke J and the appeals therefrom were heard together Island Ferries Teoranta v The Minister for Communications Marine and Natural Resources Ireland and the Attorney General 2011 IEHC 388 as to issues concerning charges for using the harbour at Ros a Mhíl in County Galway 2012 IEHC 256 as to damages in respect of the same case and Island Ferries Teoranta v Galway County Council 2013 IEHC 587 as to charges for using the harbour at Cill Rónáin on Inis Mór Effectively therefore there are two sets of appeals one as to the charges on the mainland of Ireland and the other as to the charges on Inis Mór This Court in a determination issued on 22nd January 2015 in the Galway County Council case invoked Article 64 3 3º of the Constitution to cancel insofar as this appeal is concerned the Direction given by the Chief Justice under Article 64 3 1 specifying appeals which were to be heard in the Court of Appeal 2015 IESCDET 1 In consequence the other related appeal where the Minister is the respondent was heard with that case on appeal rather than going separately to the Court of Appeal Issues 2 These appeals raise similar questions as to the proper exercise of jurisdiction where the Oireachtas grants powers to make subordinate legislation to the executive a Minister in the Ros a Mhíl case and in the Cill Rónáin case a county council Even though the legislation in both cases is different the same points of principle and interpretation arise Points of competition law also arise Ports from which passenger ferries can operate to the Aran Islands are few Doolin in County Clare is near to Inis Oírr and there is a limited ferry service from there In terms of convenience however Galway City and Ros a Mhíl are closer to large centres of population and have other practical advantages from the point of view of tourists Doolin has other attractions of course Many visitors it appears more than 200 000 per year although the numbers fluctuate wish to experience the unique linguistic cultural and archaeological heritage of the islands In the provision of harbours for ferries operating to the Aran Islands for the purposes of competition law it is conceded that Galway County Council and the Minister are in a position of dominance in the relevant market and for these purposes the respondents are treated as an undertaking Essentially it is claimed by Island Ferries that by the Minister increasing charges for the use of the harbour at Ros a Mhíl and by Galway County Council initiating the levying of charges for harbour services at Cill Rónáin each were acting outside the proper boundaries of what was possible under the applicable legislative power as devolved to each respectively In other words it is claimed that there was an abuse of the delegated power to make legislation in each case Island Ferries also claim that the increase in charges amount to the abuse of his dominant position by the Minister in respect of Ros a Mhíl and the abuse by Galway County Council in respect of Cill Rónáin of that local authority s dominant position 3 Both the Minister and Galway County Council argue that the fees as fixed by them for the use of the two harbours were inside the wide range of appreciation which the Oireachtas must be taken to have contemplated in giving each charge of these maritime facilities and in allowing the fixing of fees Both respondents also deny that there has been any abuse of a dominant position by them in the relevant market In Island Ferries Teoranta v The Minister for Communications Marine and Natural Resources Ireland and the Attorney General 2011 IEHC 388 Cooke J held that the Minister had acted in excess of his statutory authority to make delegated legislation in fixing the charges for use by passenger ferries at Ros a Mhíl and further held that the Minister had thereby abused a dominant position in the market Cooke J in his judgment at 2012 IEHC 256 fixed damages in respect thereof The Minister has appealed those findings Both parties have also disputed the damages award as to principle and as to amount In Island Ferries Teoranta v Galway County Council 2013 587 Cooke J held that Galway County Council was within the terms of its authority to make delegated legislation fixing the charges for use by passenger ferries at Cill Rónáin and he further held that there was no abuse by the council of a dominant position Clearly those findings meant no damages were awarded in that case Island Ferries have appealed those findings A claim as to the constitutional validity of the relevant legislation in the Cill Rónáin case was also made on the pleadings by Island Ferries No constitutional issue however was argued on this appeal Background and charges Ros a Mhíl 4 Since the earlier decision of Cooke J is in respect of the harbour in Ireland at Ros a Mhíl the background to that decision should now be recounted The O Brien family of county Galway have been involved in services by sea to the Aran Islands since the beginning of the 20th century As the evidence of Susan O Brien before the High Court recounted her grandfather was the first of the O Brien family involved in transporting cargoes including turf and livestock using Galway hookers Her father Patrick began a passenger service from Ros a Mhíl using a relatively small vessel With the increase in numbers wishing to visit the islands this service prospered While she spent some time working abroad she returned to manage the service and as of 2003 the company was operating 6 passenger vessels Two of these were up for sale as of the end of 2011 when Cooke J delivered his judgment What is relevant is that from 2004 to the date of hearing this appeal Island Ferries operated two large passenger vessels Ceol na Farraige and Draoícht na Farraige and that each of these had an approved compliment of 294 passengers or 588 altogether There are also two other smaller vessels Banríon na Farraige and Glór na Farraige and these are used as standby but their compliment of passengers is 188 and 244 respectively Thus were full capacity to be used Island Ferries could by using all its major vessels set off from Ros a Mhíl to Inis Mór and the other two islands with up to 1 020 passengers While most tourists are interested in visiting Inis Mór there are also sailings on to Inis Meain and to Inis Oírr which lie southerly In terms of numbers the figures given on the appeal indicate that another ferry company operates out of the docks at Galway City and another from Doolin pier in Clare carrying between all of them the approximately 200 000 people mentioned earlier in this judgment Most of the business goes to Island Ferries Ros a Mhíl is predominantly a fishing port and fisherfolk based on the islands will land their catch on Ireland and not on the islands This is because of the availability of a market and the large population centres and motorway nearby They will then take the ferry home to the islands Island Ferries also have a Government contract to operate a year round service They carry 150 000 passengers or more on the round trip annually and of these about 36 000 are islanders commuting for one reason or another Island Ferries is now the only ferry company operating from Ros a Mhíl There was at least one other competitor but that operator has ceased trading No case was made that the reason for discontinuing trading was the charges at issue in this case 5 Ros a Mhíl is one of 5 designated fisheries harbours in the State The others are Killybegs in County Donegal Castletownbere in County Cork Howth in County Dublin and Dunmore East in County Waterford In reality of these Ros a Mhíl is the only harbour used for any substantial number of passengers There are some trips from Howth to Ireland s Eye but since that island is tiny and uninhabited journeys can apparently be numbered in only hundreds Ros a Mhíl is essentially set up as a harbour for fisheries With the growth of tourism to the Aran Islands more use has come to be made of it for ferrying passengers Island Ferries has an office at that harbour and a sales booth on the quayside and in addition has offices in Galway City According to evidence before Cooke J the ferry operation use 13 7 of the berthing space and 4 of the pier space Vessels had to be double docked at one stage requiring passengers to traverse one ferry to reach the other but the harbour authorities have recently installed pontoon berthing space enabling direct access in a way familiar from marina facilities elsewhere in the country A carpark is also provided as are basic refreshment facilities Water and fuel is available for all vessels and human waste and rubbish disposal facilities are provided at that harbour 6 Before turning to the issue of the jurisdiction and statutory basis upon which a very large cost increase was imposed on Island Ferries an analysis of the relevant figures is appropriate The Fishery Harbour Centres Rates and Charges Order 1990 SI 239 1990 set the standard operating costs for Ros a Mhíl until replaced by the Fishery Harbour Centres Rates and Charges Order 2003 SI 439 2003 and this came into force in time for the summer season by commencing on the 1st of May 2004 Under the 1990 set of charges the use of the harbour by passenger boats was at the choice of the owner who could choose a flat rate per year or instead pay by departure These charges were in Irish pounds Later charges as challenged on this appeal are in Euro To avoid confusion 1 Euro 787564 Irish pounds 1 Punt 1 27 Euros Under these 1990 charges where a vessel carried under 50 passengers the owner could choose to pay either 1000 for the entire year or to pay 10 for each occasion when the boat entered the harbour It clearly made sense to pay 1 000 for the year since some vessels would do up to 6 roundtrips to the islands during the busy season This also meant that costs were fixed and were reckonable in advance with precision Where a vessel carried between 50 and 100 passengers charge per entry into the harbour went up to 25 or at the option of the ferry operator 2 500 could be paid for the entire year The category most relevant to Island Ferries is vessels with the permitted compliment of over 100 passengers Here the ferry operator could pay 4 000 to operate that vessel in and out of the harbour for the entire year or could choose to pay 40 for each entry Thus with 4 vessels with a complement of over 100 passengers the fixed costs of using the harbour would be 16 000 annually May 1st was always the date for the payment of annual fees 7 As and from the 1st of May 2004 no annual fee was possible for boats carrying 100 passengers are more but instead a per passenger rate was introduced Where the size of the boats allowed a complement of less than 100 passengers an annual charge still operated This increased Thus where the vessel had a complement of 13 to 99 passengers the owner could pay 4 000 for the year or could choose instead to pay 40 for each entry into the harbour Smaller vessels which carried between 7 and 12 passengers could pay 1 000 for yearly use of the harbour or could pay 15 per entry Vessels licensed to carry up to 6 passengers could use the harbour for an annual fee of 500 or could choose to pay 10 for each entry Illustrative figures as to the change are possible 8 Up to May 2004 Island Ferries operating its 4 passenger vessels each carrying more than 100 passengers paid a flat rate for use of the harbour at Ros a Mhíl of 20 315 80 or IR 16 000 In addition there was also a small annual licensing charge for each vessel As and from May 2004 since each of the vessels owned by Island Ferries carried a complement of more than 100 passengers for each passenger carried a flat rate fee of 1 20 had to be paid One return sailing per day of each vessel with a full compliment of 1080 passengers would run up a charge to Island Ferries of 1 224 Two return sailings per day would cost 2 448 After 10 days the cost of the annual flat rate prior to May 2004 would be well exceeded In 2002 according to the facts as found by Cooke J Island Ferries paid the harbour 22 475 for use over the year After that date the first full season gave rise to a charge of 163 724 about 7 times the prior annual charge The evidence before Cooke J was that the charges were insupportable A return ticket was sold at 25 but tour operators demanded much tighter pricing according to counsel on this appeal dipping as low it was claimed as 8 This figure however was not accepted as part of the primary findings of fact by Cooke J In addition while it was claimed in argument on this appeal by Island Ferries that in effect the market would not bear a single extra cent it was later urged that Island Ferries did not object to paying a reasonable fee for use As to what that was or how it might be calculated at a particular figure was not touched on during the appeal While there was evidence before Cooke J as to the tight operating margins of Island Ferries and of the level of employment that they sustained and of the now around 70 dependence of the Aran Islands on tourism as a source of livelihood no findings of fact in regard to sustainable or reasonable cost were made by Cooke J It is not however the function of any court in considering the correct use by a subordinate legislating authority in setting a charge to stand in its shoes and make suggestions as to amount much less to fix charges judicially All that can be decided is whether subsidiary legislation is consistent with the principles by which authority to make binding rules is enabled 9 On the new charges coming into force Island Ferries refused to pay but continued paying at the old rate and if the new charges are valid several hundred thousand euro are now owed to the Minister Up to date figures are not now available Background and charges Cill Rónáin 10 On arriving at Inis Mór the harbour prior to its redevelopment in 2011 emerges from the judgment of Cooke J as being an occasion of multiple accidents waiting to happen Following on representations from the islanders through their lobbying body for these purposes Coiste Calafort or harbour committee in translation Galway County Council commissioned a report as to what needed to be done The prior landing consisted of a single pier in increasingly poor repair and with jarveys minibuses livestock and other cargo jostling for position Weathering resulting from the habitual winter storms in the Atlantic reduced the safety of the pier year by year As earlier indicated as fishing families purchased larger

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  • purposes I am prepared to accept this statement as also representing Irish law The portion quoted by the appellant from para 19 10 of the work is as follows Once a request has been received the territorial authority has discretion whether to grant assistance There is a presumption that the UK will provide assistance especially where there is a treaty relationship with the requesting state CICA 2003 does not circumscribe the limits of this discretion and the courts have been reluctant to do so The expectation is that requests for assistance will be acted upon unless there are compelling reasons for not doing so In R JP Morgan Chase National Association v Director of the Serious Fraud Office 2012 EWHC 1674 Admin para 53 Gross LJ said What then might those compelling reasons encompass Here as elsewhere discretionary powers are to be exercised having regard to the facts of the individual case For this reason and more generally because it would be unwise and inappropriate to do so I do not think that there can be any exhaustive categories or list of cases where the SSHT Secretary of State for the Home Department would be entitled or obliged to exercise her discretion against acting on a request for assistance As already observed statutory discretion should not readily be fettered That said first the existence of cases where the SSHD may or should exercise her discretion to refuse or accede to a request underlines that her role is not that of a rubber stamp Mutual assistance should not be equated to a blank cheque Secondly cases of refusal to accede to a request must be rare or exceptional for reasons already canvassed and if international mutual assistance is to function Thirdly I do not think that the SSHD s discretion to refuse to act on a request is confined to those instances enumerated in the Convention The authors went on to state at para 19 11 In R v Central Criminal Court ex p Propend Finance Property Limited 1996 2 Cr App R 26 33 Laws LJ said that national security considerations could justify a refusal of assistance Violation of the principle of ne bis in idem might also provide a basis for refusing assistance as might a request which his an abuse of process 35 In a case like this which is an investigation case this suggests that a minister must be satisfied that the request is from an appropriate body that there are reasonable grounds for suspecting that an offence under the law of that country has been committed and that an investigation is being carried out there Even when such conditions are satisfied the Minister has a discretion not to nominate a District Justice under section 51 Having regard to the objective of mutual assistance it will be only on rare occasions that the Minister would refuse Refusal would normally require compelling reasons It is not possible or desirable to provide an exhaustive list of the circumstances which would justify refusal Such circumstances must be considered by reference to the facts of the individual case but grounds which might amount to compelling reasons justifying refusal may be considerations such as national security breach of a fundamental principle of justice or abuse of the process Any representations must be considered within the requirement for urgency in any such request the limitations of any possible inquiry available to the Minister and the limited matters to be considered 36 Counsel for the appellant argued that since the allegation here was one of abuse of process the Minister was duty bound to consider it and to investigate it However I do not think it is sufficient to approach the case at that generalised level I agree with counsel for the respondent that the case has to be looked at in the light of the specific objections made When the letter of the 29th of May is analysed I think it is apparent that the objections were not directed to an assertion that the s 51 criteria had not been met nor did it seek to establish one of the established grounds for the exercise of discretion such as national security or breach of a fundamental principle of justice It did raise a contention of abuse of process but not in the sense which had been advanced or approved in any decided authority or indeed as generally understood The traditional concept of abuse of process carries an underlying contention that a legal process is being used for an improper purpose for example if it was said that the request while valid on its face was being used for an ulterior purpose such as to get access to information for political purposes Instead the allegation made here was one which blurred the grounds for objection It was contended it appears that inaccuracy and misstatement in the letter of request was of itself an abuse of the process 37 The substance of the complaint was to be gleaned from the following passage at the outset of the letter At p 2 of the letter it is stated firmly that the complaint is one of abuse of process The immediately subsequent passage states We are instructed that there are two current criminal proceedings in Italy involving Mr Agrama both led by Mr Fabio De Pasquale the prosecutor The first proceeding concerns the current trial which started November 21 2006 before the Milan court against Mr Agrama and eleven other co defendants including Silvio Berlusconi the former Italian prime minister In these proceedings Mr Agrama is charged with having participated in three crimes allegedly committed in the year 1999 i misappropriation of Mediaset spa s funds ii false accounting for the year 1999 and iii fraudulent tax return for the year 1999 This proceeding the so called Mediaset proceedings started with investigation numbered 22694 01 RGNR The second proceeding is currently only at the stage of a preliminary investigation before the prosecutor s office in Milan against Mr Agrama and two other suspects where Mr Agrama is just a person under investigation not a defendant since there is no indictment 38 Pausing there and looked at broadly as I think the Minister is entitled to these introductory matters not only do not amount to a challenge of any of the matters on which the Minister must be satisfied before exercising his discretion under s 51 but rather they constitute confirmation of them Not just one but two investigations are underway in Italy they are being conducted by Mr De Pasquale and one of them has reached the point in which proceedings have been commenced 39 Having identified the fact that the misappropriation charges in the Mediaset proceedings had been dismissed the letter of the 29th of May then purports to set out the following misrepresentations inconsistencies and omissions contained in the Request The first objection is taken to the statement that the request is aimed at investigation a serious and complex fraud which includes offences of money laundering carried out in the period 1999 2000 The letter objects that the potential charge being investigated is one specifically of misappropriation But the second letter of request recorded that Mr Agrama and others having been indicted and referred to episodes of money laundering committed during the period 1994 to 1997 which is not specifically challenged or contradicted It is not on its face wrong to say that there is an investigation into matters including money laundering even if the only live charge as of May 2007 was misappropriation Even assuming that it can be described as an inaccuracy it could not conceivably affect the Minister s decision This objection must be viewed in the light of the matters of which the Minister is required to be satisfied The Cox letter acknowledges that there is an offence under investigation Furthermore the manner in which the facts are set out in some detail of both letters of request makes it clear that certain transactions are being investigated which it is alleged may give rise to a number of different criminal offences 40 The second objection was to the third paragraph of the letter of request which states The broadcasting rights in question were supplied to the companies Mediatrade spa and RTI spa by Olympus Trading Ltd a dummy company based in Dublin which can be traced back to Frank Agrama The latter is an Egyptian individual who operates in Los Angeles The complaint made in relation to this is as follows As can be seen from the Companies office records Frank Agrama is neither a shareholder of nor a director of Olympus Trading Ltd The prosecutor offers no evidence to substantiate the allegation that the company dummy or otherwise can be traced back to Mr Agrama Furthermore the Prosecutor insists on referring to Mr Agrama as an Egyptian individual despite the fact that Mr Agrama who was born in Egypt has been a United States citizen for almost 22 years since July 31st 1985 Attachment 6 a copy of Mr Agrama s naturalisation papers 41 It is surprising indeed that these matters are presented as misstatements and inaccuracies and startling that it could be suggested that they are an abuse of the process justifying the Minister in refusing to exercise his powers The fact that Mr Agrama is neither a shareholder nor director of Olympus Trading Limited does not mean that it is a misstatement to say that the company can be traced back to him Furthermore this may be an issue in the Italian proceedings if matters ever reach that point and the Minister would be fully justified both in considering that this is something he could not possibly resolve in the context of the request and that if relevant it would be for determination in Italy Furthermore while it is true that the paragraph in question referred to Mr Agrama as an Egyptian individual the letter of request states on p 2 Farouk Agrama known as Frank was born in Arish Egypt on 1 1 1930 He lived in Italy for some years He has lived in the United States since the eighties and is an American citizen It is surprising that one of the earliest grounds upon which it is alleged that the request for assistance is misleading and contains misstatements amounting to an abuse of the process is the reference on page 1 of that requesting letter to Mr Agrama as an Egyptian individual when all the information alleged to have been omitted or misstated is on page 2 However and taking it at its height even if the letter of request had persistently referred to Mr Agrama as an Egyptian individual it is impossible to see how that could constitute an abuse of process justifying the Minster in refusing to exercise his powers in aid of a friendly country in circumstances where Mr Agrama s place of birth or appropriate national description is not relevant to any of the matters on which the Minister has to be satisfied and could not give rise to any questions of national security or fundamental breaches of justice or cognate matters which would amount to compelling reasons not to exercise the power to appoint a district justice to receive evidence to be transmitted to Italian authorities 42 Much of the rest of the letter of complaint amounts to matters quarrelling with detail and a description of the underlying facts of the Italian procedures Some of these if at all relevant could only be resolved in the Italian proceedings but could not amount to the type of conduct which could be described as justifying the exercise of ministerial discretion against complying with the request This illustrates what has been done in this case since abuse of process might be a ground for refusing to execute a request all the complaints of error whether of fact nuance or description have been gathered and simply labelled abuse of the process But they are at best allegations of error and the mere description of them as abuse of the process cannot without more impose an obligation to investigate them 43 The most serious matter raised by the letter Mr Agrama s affidavit and the Cox letter of the 29th of May 2007 is touched on in passing in the letter as follows We wish to draw to your attention that on January 26 2007 the United States District Court in the Central District of California issued a court order wherein it states that it was the Prosecutor Mr De Pasquale and not Mr Agrama who acted with unlawful and reprehensible conduct in the United States and that the United States government would not longer rely on the assertions of Fabio De Pasquale the prosecutor This was amplified in the affidavit which asserted that there had been similar abuse of process by Mr De Pasquale in the United States and Hong Kong The affidavit referred to the grant of leave to seek judicial review in Hong Kong in respect of assistance obtained in that jurisdiction in which Mr De Pasquale had participated in a search and seizure operation Nothing further has been drawn to the Court s attention in relation to this matter and I infer therefore that the judicial review was unsuccessful However in the United States search and seizure warrants were obtained in respect of Mr Agrama s residence and the office of a company associated with him Harmony Gold USA Inc That was challenged in the courts and the United States District Court in the Central District of California issued a court order that the warrant be withdrawn and the seized property be returned The order stated that the US government would no longer rely on the assertions of Mr De Pasquale A declaration from Mr Agrama s lawyer was exhibited which states that the reason why the search warrants were set aside was related to the fact that the Italian prosecution team obtained access to privileged attorney client communications The result was that the United States government consented to an order setting aside the search warrants returning the property and making the stipulation referred to above that it would no longer rely on the assertions of the Mr De Pasquale It was recorded in the court order that the government learnt facts about the conduct of Fabio De Pasquale Stefano Martinazzo and Gabriela Chersicla before during and after November 15th 2006 searches and seizures and accordingly was not resisting the motion 44 This is undoubtedly a serious matter However it has not resulted in any other official body stopping the investigation or proceedings Furthermore it is itself inaccurate to refer to this incident as a similar abuse of the process to what is alleged here If indeed Mr De Pasquale was seeking search powers and to participate in a search that statement might be more accurate and the issue more relevant There is no question of any search or seizure being carried out here still less of Mr De Pasquale or any other official being involved in such a search No privileged information is being sought in the letter of request Indeed under the second schedule to the Act the fact is that a witness is entitled to the same privileges in the proceedings as would be available both in criminal proceedings in this State and in the proceedings of the territory if the requesting state These matters cannot therefore amount in themselves to an abuse of process such as to entitle the Minister not to exercise his discretion not to invoke the s 51 machinery or to lead the Minister to consider that the asserted inaccuracies are such abuse of the process There is no suggestion that the evidence is not sought for a proper purpose or indeed for the purpose contemplated by the Act It is not suggested that it is sought for some ulterior motive or for some purpose other than the investigation of offences which was then underway in Italy 45 When viewed in the context of the specific complaints raised by and on behalf of Mr Agrama in the letter of the 29th of May 2007 I would still hesitate to accept counsel s submission that the somewhat delphic evidence on behalf of the Minster must be understood as stating that where as here the objections raised went neither to the statutory matters of which the Minister must be satisfied under s 51 nor to establishing those rare and exceptional matters which would have justified the Minister in exercising his justification to refuse to issue a request the Minister considered he was not obliged to and as a matter of practicality could not investigate or question matters relating to the conduct of the investigation and prosecution in Italy However it is not necessary to do so to resolve this case The applicant s case was that the minister had adopted a fixed policy of not investigating submissions and thus wrongfully fettered his discretion The onus was on the applicant to establish this Although the applicant obtained discovery no evidence was put before the Court to support this contention Furthermore although the applicant had brought a number of interlocutory applications with some success no application was made for leave to cross examine the deponent on behalf of the Minister as to the decision making process Accordingly I do not consider the evidence goes further than establishing that the Minister considered the objections Furthermore if it is the case that the Minister was entitled not to carry out an investigation into the allegations made in this case it would not avail the applicant to show if that was the case that the Minister took an overbroad view that he would not carry out investigations in any case such as an allegation that the s 51 criteria were not in fact established or some allegation of true abuse of the process As I have observed there is no evidence of such an overbroad approach on the part of the Minister but if it did exist it would only avail an applicant in a situation where an investigation was required and accordingly on the view I take of the objections raised could not avail the applicant here in any event Accordingly I would dismiss the appeal THE SUPREME COURT Appeal No s 534 555 2013 Denham C J Hardiman J O Donnell J McKechnie J Clarke J Between FRANK AGRAMA Applicant AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM DISTRICT JUDGE CATHERINE MURPHY AND DISTRICT JUDGE BRIDGET REILLY Respondents Judgment of O Donnell J delivered on the 9th day of December 2015 1 A colourful cast of characters and some exotic locations are involved in these judicial review proceedings The case has sprawled over six lever arch files of appeal papers one motion book and even one large book of transcripts It has generated much correspondence and multiple court applications hearings and rulings All of this can distract attention from the fact that at its core the issues for determination are relatively net While it will be necessary to address these matters in greater detail the essential fact is that an Italian prosecutor has issued two letters of request of the 17th of July 2006 the first letter and the 11th of January 2008 the second letter to the respondent Minister for Justice Equality and Law Reform the Minister By those letters the prosecutor sought the assistance of the Irish authorities in obtaining evidence for an investigation then underway in Italy The requests were made pursuant to the provisions of the European Convention on Mutual Assistance in Criminal Matters signed at Strasbourg on the 20th of April 1959 the Convention The Convention has been given effect in Irish law by the provisions of Part VII of the Criminal Justice Act 1994 the 1994 Act now superseded and replaced by later legislation which however is not relevant to these proceedings The first letter was executed in part with some evidence having been taken by the District Court and submitted to the Minister and transmitted to the corresponding Italian authorities These proceedings have been brought by Mr Frank Agrama a U S business man who seeks to quash the decision of the Minister to appoint the second and third named respondents respectively to receive and transmit to the Italian authorities evidence sought under the requests The proceedings also seek other consequential relief including orders seeking the return of any information and evidence transmitted under the first request 2 The first letter runs to 12 pages Simplifying the matter considerably for the purposes of setting the dispute in context the first letter informed the Minister that Fabio De Pasquale the public prosecutor of the court in Milan was conducting an investigation into what was described as a serious and complex fraud which includes offences of money laundering carried out in the period 1999 2000 These offences were alleged to be connected to the purchase of broadcasting rights by the company Fininvest S p A through subsidiary companies Media Trade SpA and RTI SpA Mediaset which was I believe a parent of Media Trade was part of the Berlusconi Group which at the time was an important group of entertainment companies associated with Silvio Berlusconi the well known Italian businessman politician and for some of the period covered by these events the controversial Prime Minister of Italy Signor Berlusconi was a large if not the largest shareholder whether directly or indirectly in Mediaset although as the letter of request points out Mediaset is a listed company on the Italian stock exchange whose shares are also owned by private investors and financial institutions 3 Again and in a very simplified form it appears that the transactions being investigated related to the sale of broadcasting rights by the U S conglomerate Paramount and which rights were ultimately purchased and exercised by Mediaset companies The allegation was that the rights were initially purchased by intermediary companies named Wiltshire Trading and Melchers based in Hong Kong and Netherland Antilles and then sold to Mediaset companies at substantially inflated prices It was also alleged that payments of monies were made by Wiltshire to individuals owning accounts in Switzerland which it was alleged could reasonably be understood to represent a system for returning part of the illegal proceeds made by Wiltshire Trading Ltd through the sale of television rights at inflated prices to Mediaset Group companies The Wiltshire and Melcher companies were alleged to be associated with Mr Agrama It was also alleged that in the year 2000 and thereafter similar transactions were carried out through intermediary companies which had been incorporated in Ireland Olympus Trading Limited and Olympus Trading Ireland Limited The sums alleged to be involved are enormous It was for example alleged that the difference between the amount paid in the period 1988 1999 by the Berlusconi group companies to the Agrama related companies and the sum paid by the Agrama companies to Paramount for the products was 170 million It appears that the Irish companies were established by a company formation business FPR Trust Company Limited 101 Furry Park Road Dublin 5 which supplied directors to the companies The first request therefore asked the Irish authorities to acquire documentation at the premises of FPR Trust Company Limited concerning Olympus Trading Limited including the documentation relating to the incorporation of the company and all company documents The request also sought the provision of contracts for the sale of the broadcasting rights to the companies Media Trade SpA and RTI SpA as well as contracts for the purchase of the broadcasting rights Finally the request sought documentation concerning bank accounts at National Irish Bank 27 College Green Dublin 2 4 A feature of Italian law which looms large in these proceedings and to which both parties have referred is the unusual provisions of the Italian statute of limitations in criminal matters as explained in the second letter of request as follows After the formulation of the accusations by this Public Prosecutor and while the preliminary hearing was underway the Italian Parliament in December 2005 reduced the period of time after wich sic the Statute of Limitations would come in to effect for several offences including those being examined in the ongoing Mediaset hearing It must be emphasised that in the Italian legal system the Statute of Limitation is the time within which The criminal lawsuit must be brought against the defendants and The trial and any subsequent appeal must be concluded This means that even after the indictment and the beginning of the trial and even during the trial itself the Statute of Limitation continues to run Therefore the expiry of the limitation period can occur during the trial this is not rare with the new 2005 Law and in this case for some charges or even all charges the trial would come to an end Much of what occurred in this case can be understood when viewed in the context of these provisions 5 The procedure under the 1994 Act did not require notice to any party other than the person or persons from whom evidence was sought However Mr Agrama or his representatives became aware that the process had been initiated under the 1994 Act This was hardly surprising since it appears that there were also applications for assistance made and for the obtaining of evidence both in Hong Kong and in the United States and perhaps elsewhere Messrs Arthur Cox Company were retained to act on behalf of Mr Agrama who then instructed counsel to appear in the District Court on the 16th of May 2007 to seek an adjournment to allow the making of representations The matter was adjourned and on the 29th of May 2007 Messrs Cox Company delivered an eleven page letter 29th May letter to the Chief State Solicitor s Office CSSO Although addressed to the Chief State Solicitor and marked for the attention of a solicitor employed in that office it appears that the substance of the letter was a representation through the CSSO to the Minster calling upon him to revisit the consideration of the letter of request and to withdraw the designation of the second named respondent In 24 numbered paragraphs over 11 pages with 22 attachments some of them substantial a number of alleged inaccuracies and misrepresentations were identified in the first letter of request and it was expressly submitted that the placing of such a misleading request before the Minister represented a serious abuse of the process envisaged by the Convention It will be necessary to address the detail of this objection later For present purposes it is however sufficient to note that this was the substance of the representation 6 The Chief State Solicitor s Office wrote to Messrs Arthur Cox on the 7th of June 2007 pointing out that the second named respondent had been unavailable to sit due to illness and that the CSSO would revert to Messrs Cox when the matter was re entered The letter continued I also acknowledge receipt of your letter of the 29th of May 2007 received in this office on the 30th of May and confirm that same has been forwarded via the Department of Justice to the investigating Magistrate Mr Fabio De Pasquale and I confirm that I will revert back to you when instructions have been received from him regarding the contents of same It is now apparent that there was indeed contact with the Italian Ministry for Justice and also with the prosecutor Mr De Pasquale who at one stage sent an email of the 2nd of July 2007 to the CSSO stating that he was preparing a statement addressing all the points in the Cox brief Later indeed Messrs Cox discovered from the court file in the Central Office that the Italian prosecutor went so far as to lodge an application seeking to have himself joined to the judicial review proceedings but in the event no such application was moved 7 The next communication to Messrs Cox on behalf of Mr Agrama did not address any of the points made in the 29th May letter Rather a letter of the 11th of March 2008 confirmed that a date for hearing had been received of the 9th of April 2008 and that due to the illness of the second named respondent District Justice Murphy the matter would now be dealt with by the third named respondent District Judge Reilly That letter continued I now enclose herewith for your attention copy of the four Witnesses summonses which had been issued by Judge Reilly on Monday the 10th of March last I also enclose herewith for your attention copy letter of request dated 11th January 2008 received from the Public Prosecutor in this case to sic Mr Fabio De Pasquale Please note that the application presently before the courts listed for hearing on the 9th of April next will be based on the enclosed Letter of Request 8 This letter was the first that Cox s had heard of any second letter of request The second letter was broadly similar to the first but contained some further information as to matters which had transpired since the first letter had been issued Thus for example it was able to state that the investigation had reached the point where there had been a preliminary hearing resulting in indictments At the end of several months of hearings the Judge for the preliminary hearing ordered on the 7th July 2006 the indictment of Frank Agrama Silvio Berlusconi Marco Colombro Fedele Confalonieri Giorgio Dal Negro Paolo Del Bue Manuela De Socio Gabriella Galetto Erminio Giraudi Daniele Lorenzano David Mills and Carlo Scribani Rossi for all the offences not affected by Statute of Limitation embezzlement from 1998 to 1999 tax fraud related to the tax returns of 1998 and 1999 false accounting 1998 and 1999 episodes of money laundering committed during the period 1994 1997 to proceed A trial had begun on November 21st 2006 and during that trial the Statute of Limitation was declared for all the charges of embezzlement and false accounting Accordingly the trial continued on charges of tax fraud but at the hearing of November 19th 2007 the public prosecutor pressed new charges of tax fraud on various defendants including Berlusconi and Agrama in relation to further unlawful acts connected to the purchase of television rights that have been discovered or definitively quantified subsequently to the request of indictment These are offences committed up to October 26th 2004 In relation to these offences the Statute of Limitation will definitively expire on April 26th 2012 Again while the letter was in broadly similar format to the first letter it now described the proceedings as being aimed at investigating a serious and complex fraud which includes offences of money laundering carried out in the period 1999 2005 and which is connected to the purchase of broadcasting rights made by the company Mediaset spa through the subsidiary companies Mediatrade spa and RTI spa Emphasis added While the description of the subject matter of the investigation had not changed the period of the investigation had been extended 9 These proceedings were commenced and leave to seek judicial review was obtained on the 7th of April 2008 Relief was sought on 24 grounds including that it was alleged that the letter of request was vitiated by misleading and inaccurate request grounds v vi and that the letter constituted an abuse of process ground x Importantly for present purposes at ground xiii it was alleged that despite representing that he would respond to the substance of the allegations concerning the first letter of request the first named respondent failed to respond or otherwise properly deal with said allegations and at ground xiv it was asserted that the Minister had failed or refused to reconsider his decision A statement of opposition was filed together with a short replying affidavit It will be necessary to address those documents in greater detail in due course However to understand the dispute between the parties it may be useful to pause at this point and set out the somewhat particular legal regime involved 10 The 1994 Act Section 51 of the Criminal Justice 1994 is contained in part VII of that Act That part deals with international cooperation in criminal matters It includes external confiscation orders external forfeiture orders provisions for the service in the State of process issued outside the State and correspondingly for service outside the State of process issued in the State Section 51 provides for the taking of evidence in the State for use outside the State and section 52 is a reciprocal provision providing for the obtaining of evidence outside the State for use in the State Section 53 deals with the transfer of prisoners in the State to give evidence or assist in investigation outside the State Once again s 54 provides for a reciprocal provision permitting a prisoner to be transferred from outside the State to the State for the purpose of giving evidence or assisting an investigation 11 At the relevant time s 51 provided as follows 1 This section shall have effect where the Minister receives a from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory or b from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted or a criminal investigation that is being carried on in that country or territory 2 If the Minister is satisfied a that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed and b that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there he may if he thinks fit by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request 3 For the purpose of satisfying himself as to the matters mentioned in subsection 2 a and b of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate 4 In this section evidence includes documents and other articles 5 The Minister shall not exercise the power conferred on him by subsection 2 of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not without his consent be used for any purpose other than that specified in the request 6 The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection 2 of this section 12 The second schedule to the Act regulated the taking of evidence for use outside the State and at Article 1 thereof provided that the judge would have like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that court Article 2 provided the power to administer oaths and Article 3 provided that a person should not be compelled to give in the proceedings any evidence he could not be compelled to give in criminal proceedings in

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  • pursuant to the provisions of s 22 of the Courts Act 1981 which provides as follows Where in any proceedings a court orders the payment by any person of a sum of money which expression includes in this section damages the judge concerned may if he thinks fit also order the payment by the person of interest at the rate per annum standing specified for the time being in section 26 of the Debtors Ireland Act 1840 on the whole or any part of the sum in respect of the whole or any part of the period between the date when the cause of action accrued and the date of the judgment It is clear that the power to award interest is a discretionary power The learned trial judge observed at page 150 of his judgment The court notes that there was no provisions sic for interest on the amount of debt owed by Canestar nor indeed on any interest due on late payment of commission The court does not think it appropriate notwithstanding the deliberate withholding of money due to make any order in relation to interest on any balance due It was contended on behalf of Fermoy Fish that the learned trial judge erred in failing to award Fermoy Fish interest on the sum of 484 896 in circumstances where the judge held that there was a deliberate withholding of money due It was pointed out that the money concerned was at all times the money of Fermoy Fish and was not a debt owed to Fermoy Fish As set out above the claim for interest before the High Court was advanced on the basis set out in Mr Peelo s report Interest is now claimed on the sum of 484 896 Leaving aside the difference in the figures and the basis on which interest was claimed it does seem when one considers the manner in which Mr Peelo sought to calculate interest that it was intended to rely on the claim for interest as an alternative to proving loss or damage accruing by reason of the loss of use of the money wrongfully withheld by Canestar The learned trial judge was entitled in his discretion to disallow the claim for interest put forward on that basis This Court will not lightly interfere with the exercise of discretion by a trial judge There is no basis for interfering with the exercise of discretion by the learned trial judge although Fermoy Fish have sought to rely on the fact that that Canestar owed a fiduciary duty to Fermoy Fish Even if that provided a basis for informing the discretion to be exercised by a judge in considering whether to award interest pursuant to s 22 of the Courts Act 1981 it is quite clear that the learned trial judge took into account the deliberate withholding of money due and accordingly I cannot see how Fermoy Fish is entitled to overturn the finding of the trial judge in respect of its claim for interest pursuant to the provisions of s 22 of the Courts Act 1981 Damages At the hearing of this appeal Fermoy Fish took issue with certain sums allowed or found to be due to Canestar on foot of the ASA In addition complaint was made as to the refusal by the learned trial judge to allow Fermoy Fish its claim in respect of a sum said to be attributable to the salary and expenses of Ms Millward O Donoghue in relation to the implementation of a quality control system I propose to deal with the issues in relation to the sum of 221 000 for stock found to be due to Canestar the sum of 40 917 claimed by Fermoy Fish in respect of Ms Millward O Donoghue and finally the sum of 150 000 part of the sum of 400 000 in respect of equipment allowed to Canestar The sum of 221 000 in respect of stock was made up as follows Packaging 80 000 Fresh fish 19 000 Frozen fish 122 000 Under the ASA Fermoy Fish was obliged to pay for stock as follows 100 000 was due on signing the ASA and the balance was to be paid within 30 days thereafter There was a stocktaking exercise after the signing of the ASA but no conclusions were reached by the parties in respect of the stocktaking and no payment was made on foot of the stocktaking apart from the initial sum of 100 000 on signing the ASA Hence the amount due under this heading became an issue in the proceedings The question of fresh fish was not pursued in the course of the appeal before this Court and therefore the sum allowed in respect of fresh fish is not the subject of any challenge The sum of 80 000 was allowed by the learned trial judge to Canestar in circumstances where Canestar had claimed 91 000 in respect of packaging and Fermoy Fish said the sum due should have been 35 000 In the course of his judgment the learned trial judge found that some of the packaging was used by Fermoy Fish but they claimed that only some 30 000 of the packaging was good stock and only a small volume of labels was useable The learned trial judge concluded that in the absence of further evidence on this issue he would allow the sum of 80 000 to Canestar He obviously preferred the evidence on behalf of Canestar on this issue It was suggested in the course of the argument on behalf of Fermoy Fish that the figure of 80 000 seemed to be too high but there is no basis upon which that figure can be set aside in the light of the clear finding of the learned trial judge It was never suggested that the finding was unsupported by the evidence Accordingly that sum stands The final figure in relation to stock consisted of the sum of 122 000 which was allowed in respect of frozen fish Fermoy Fish had valued the frozen fish stock at 44 000 approximately whilst Canestar had valued the frozen fish stock at approximately 122 000 It had been suggested by Fermoy Fish in the course of the evidence that unusable or obsolete fish had been disposed of or destroyed The sum of 122 000 was awarded by the learned trial judge who held that he was not satisfied that a significant volume of frozen fish was unusable or obsolete This conclusion was based in part on an analysis by Mr Carthy the accountant on behalf of Canestar who gave evidence that two internal invoices dated the 19th October 2005 in respect of sums of 47 494 and 21 315 making together a total of 68 809 represented stock that was not destroyed In that context the learned trial judge added that he was satisfied from the evidence of David and Eugene Garvey who gave evidence on behalf of Canestar that the stock was sold or transferred The learned trial judge was entitled to come to the view on the evidence before him that the valuation of the frozen fish stock given in evidence on behalf of Canestar was to be preferred to that of Fermoy Fish Accordingly his finding of fact in regard to the value of frozen fish stock cannot be set aside It is now necessary to deal with the claim in respect of the sum of 40 917 in respect of salary and expenses claimed by Fermoy Fish in relation to Ms Millward O Donoghue The issue arose in the context of what was said to be non performance of the consultancy agreement by Canestar and Mr O Regan This claim arose in respect of quality control issues Prior to entry into the ASA there had been a problem with quality control in Canestar s premises which had been identified as a result of an inspection by Ms Boyle a food safety and quality auditor from Musgraves who prepared a report on the issue in June 2005 Following the completion of the ASA Ms Millward O Donoghue also furnished a report It is clear from the evidence that concerns were raised by Ms Boyle on behalf of Musgrave and that work was done and standards were improved on foot of Ms Boyle s report It is apparent from the references to the reports of Ms Boyle and Ms Millward O Donoghue at pages 156 and 157 of the judgment that the learned trial judge was of the view that the involvement of Ms Millward O Donoghue in the area of quality control was not such as to justify the claim made for salary and expenses of Ms Millward O Donoghue He clearly was of the view that the report furnished by Ms Millward O Donoghue appears to have been a standard form report which was in some instances inappropriate to the premises at Crookstown As there was evidence before the learned trial judge to support his finding in this regard there is no basis upon which this Court can interfere with his finding of fact Accordingly the sum claimed by Fermoy Fish in the sum of 40 917 cannot be allowed It is now necessary to deal with the sum claimed in respect of 150 000 allowed to Canestar in respect of equipment It is necessary to consider a number of the provisions of the ASA Clause 4 was headed Sale and Purchase of the Business and provided for commission to be paid to Canestar and also provided for the payment of sums in respect of equipment Clause 4 1 2 provides as follows 400 000 00 for the Equipment payable as follows a 250 000 00 on the signing hereof b 150 000 00 subject to compliance with Clause 4 4 Clause 4 4 provided In the event that the aggregate sales figure at the end of the seventh month from the date hereof is at least 2 300 000 00 the vendor will be paid the sum of 150 000 00 which said sum shall be discharged thirty days after the expiration of the seventh month from the date hereof There was no dispute between the parties as to the interpretation of those provisions of the ASA It is the position of Fermoy Fish on the appeal that the condition stipulated in Clause 4 4 that the aggregate sales figure at the end of the seventh month that is to say on the 18th March 2006 would be at least 2 300 000 was not complied with and that accordingly Canestar was not entitled to the sum of 150 000 in accordance with Clause 4 4 At page 150 of his judgment the learned trial judge observed No calculation appears to have been given in evidence of whether or not this target had been achieved or no on the 19th April 2006 It is accepted by both sides that the reference to the 19th April 2006 was incorrect and that the relevant date was the 18th March 2006 Fermoy Fish have argued on the appeal that it was not liable for the payment of the sum of 150 000 on the basis that there was evidence before the trial judge that the aggregate sales by Canestar had only reached 2 299 257 by the 18th March 2006 with the result that the aggregate sales fell short of the target set out in Clause 4 4 by 743 The learned trial judge stated in the course of the judgment at page 150 that Mr Carty in his detailed report and on the basis of his understanding of the agreement says that Canestar did achieve that turnover and accordingly was entitled to be paid 150 000 Even if this were not so it would seem unfair to deny such payment of an arbitrary provision which allowed for no graduated payment This suggests that the learned trial judge had some doubt as to whether or not Canestar had in fact achieved aggregate sales in the sum of 2 3m It was pointed out on behalf of Fermoy Fish that the figure of 2 299 257 was a figure which was calculated by Mr Carthy in his report and that insofar as Mr Carthy in his report said that sales in the seven month period had exceeded 2 3m Mr Carthy took into account sales to various customers namely Whelans Galway and Simro Dunnes which were expressly excluded by the learned trial judge in the calculation of commission Indeed counsel on behalf of Canestar and Mr O Regan described the decision of the learned trial judge not to take into account sales through Simro Wrights of Howth Galway or Whelans in calculating aggregate sales as a huge setback to Canestar Had the Court found otherwise it was pointed out that Canestar would have reached a sales target of 2 8m approximately by the 18th March 2006 It was further submitted in the course of the appeal on behalf of Canestar and Mr O Regan that having regard to the fact that the shortfall was so small they calculated that shortfall as being 0 032 regard should be had to Clause 18 6 of the ASA wherein the parties agreed to commit themselves to the spirit and letter of the agreement In effect the submission on behalf of Canestar and Mr O Regan was that the Court should ignore the shortfall It is clear that the decision of the learned trial judge to exclude certain sales from the calculation of commission means that there is no dispute between the parties that there is a shortfall in the sum of 743 in regard to the amount of sales required to trigger the payment of 150 000 There is no dispute between the parties as to the interpretation of Clause 4 4 It is clear and unequivocal in its terms Clause 4 4 may be somewhat unusual in that it provides that the sum to be paid for equipment was subject to Canestar achieving sales of the value of 2 300 000 One might observe that the equipment was either worth 400 000 or 250 000 but not both However this is what the parties themselves agreed in a complex agreement reached with the assistance of their respective legal advisers In truth this clause looks more like an incentive or bonus arrangement designed to encourage Canestar to use its best endeavours to achieve as many sales as possible with the obvious benefits that would gain for all parties Either way having regard to the findings made by the learned trial judge in expressly excluding certain sales from being used for the calculation of aggregate sales the sales target of 2 3m was not reached by Canestar Accordingly it was not open to the learned trial judge to make the finding that he did at page 150 of the judgment that it would seem unfair to deny such payment of an arbitrary provision which allowed for no graduated payment In coming to that conclusion it is my view that the learned trail judge fell into error The parties were entitled to reach agreement on the method of payment and did so There is no dispute as to the interpretation of Clause 4 4 and as that was the agreement of the parties it is not open to the Court to rewrite the agreement for them Therefore in my view given that Canestar did not reach the target for sales set out in Clause 4 4 they are not entitled to the payment of the sum of 150 000 and accordingly the amount found to be due by Fermoy Fish to Canestar must be reduced by the sum of 150 000 Conclusion There was an error on the part of the learned trial judge in concluding that there was no breach of fiduciary duty on the part of Canestar and Mr O Regan However that breach in the circumstances described above does not give rise to a claim for damages Insofar as the breach of fiduciary duty was relied on as justification for refusal to pay commission to Canestar and Mr O Regan the learned trial judge rejected that submission and there is no basis to overturn that finding Further this Court rejects the submission that there was any error on the part of the learned trial judge in his approach to the question of the payment of interest The learned trial judge made a number of clear findings of fact in relation to certain sums that were due to Canestar and Mr O Regan namely the sum of 122 000 in respect of frozen fish and the sum of 80 000 in respect of packaging There is no basis upon which this Court can interfere with those findings of fact The learned trial judge rejected the claim by Fermoy Fish in respect of the salary and expenses of Ms Millward O Donoghue Again there is no basis for interfering with the finding of facts made in that regard by the learned trial judge Insofar as the question of the payment of the sum of 150 000 in accordance with the provisions of Clause 4 4 is concerned I am satisfied that there was an error of law on the part of the learned trial judge in reaching the conclusion that the sum of 150 000 required to be paid notwithstanding that on the evidence accepted by the learned trial judge it is clear that the target in respect of sales had not been met The ASA in the clear and unambiguous terms of Clause 4 4 set a target of 2 3m in sales which had to be achieved in the first seven months of the agreement in order to trigger the payment of 150 000 As that target was not met Canestar is not entitled to receive that sum Accordingly the appeal of Fermoy Fish will be allowed insofar as the amount found to be due to Canestar in the sum of 420 682 will be reduced by the amount of 150 000 Finally Fermoy Fish disputed the order for costs made in the High Court This Court will hear further submissions on this issue THE SUPREME COURT Appeal No 334 2011 Laffoy J Dunne J O Malley J BETWEEN FERMOY FISH LIMITED PLAINTIFF APPELANT AND CANESTAR LIMITED AND DAN O REGAN DEFENDANTS RESPONDENTS Judgment of Ms Justice Dunne delivered on the 9th day of December 2015 Fermoy Fish Limited the appellant herein was previously known as Wrights of Howth Galway Limited and changed its name after judgment was delivered in the High Court For ease of reference I will refer to the appellant as Fermoy Fish Likewise I will refer to the respondents as Canestar and Mr O Regan respectively Somewhat confusingly Canestar once traded as Fermoy Fish but unless the context otherwise requires a reference to Fermoy Fish in the course of this judgment is a reference to the appellant herein Background Canestar was in the business of packaging distributing and supplying fresh and frozen fish under its own label or as directed by its customers Its principal clients were Musgraves and Dunnes Stores One of its major suppliers was a Galway company That company got into financial difficulties and was the subject of an asset sale agreement which resulted in Fermoy Fish acquiring its assets in September 2004 As a result of that agreement Fermoy Fish became the main supplier of fish to Canestar By August 2005 Canestar owed a sum of 889 692 to Fermoy Fish Given the extent of the outstanding debt the parties entered into negotiations and ultimately an asset sale agreement was concluded between Canestar and Fermoy Fish together with a consultancy agreement under which Canestar and Mr O Regan agreed to manage customer accounts on behalf of Fermoy Fish In order to understand the issues that arose in this appeal it is necessary to set out some information as to the terms of the asset sale agreement ASA Certain sums were to be paid by Fermoy Fish to Canestar on foot of the ASA namely 400 000 for equipment of which 250 000 was to be paid on signing of the ASA and 150 000 was to be paid subject to compliance with Clause 4 4 of the ASA I will refer to this clause at a later stage in this judgment The stock held by Canestar was to be purchased for its value as at the transfer date provided for in the ASA of which 100 000 was to be paid on the signing of the ASA and the balance due for stock was to be paid thirty days after the signing of the ASA A sum of 300 000 was to be paid for the goodwill of Canestar on signing the ASA It was further provided that on signing the ASA the sum of 489 682 24 being part of the debt due by Canestar to Fermoy Fish was payable by Canestar Thus after all appropriate allowances were made a net figure of approximately 160 000 was required to be paid by Fermoy Fish to Canestar on signing the ASA After the adjustment of figures was made on the signing of the agreement a balance of some 400 000 remained outstanding by Canestar in respect of its pre existing debts to Fermoy Fish and it was agreed that that sum was to be offset against monthly payments due to Canestar by Fermoy Fish until discharged Accordingly it can be seen that from the point of view of Fermoy Fish the thrust of the agreement was to recoup the sum of 889 682 24 owed by Canestar The monthly payments mentioned above were in respect of a percentage commission provided for in the ASA paid by Fermoy Fish to Canestar based on monthly sales As a result of entering into the ASA Canestar and Mr O Regan were engaged in managing the sale packaging and distribution of fresh and frozen fish for Fermoy Fish to the former customers of Canestar Unfortunately matters did not work out as anticipated It transpired that sums collected by Canestar on Fermoy Fish pursuant to the agreements were not paid over by Canestar to Fermoy Fish as discovered by Fermoy Fish early in 2006 The total amount involved was 484 896 and the discovery that money had not been paid over to Fermoy Fish led to the commencement of these proceedings An interlocutory injunction was granted by the High Court on the 27th March 2006 freezing Canestar s bank account The parties then exchanged pleadings making claim and counterclaim for sums alleged to be due to each party and the proceedings eventually came on for hearing in the High Court Murphy J Following a lengthy hearing judgment was delivered on the 7th June 2011 The outcome of the proceedings was that Canestar was found to be entitled to judgment in the sum of 420 682 after taking into account all sums due to Fermoy Fish Appeal Fermoy Fish has appealed the judgment and order of the High Court made herein There are some nineteen grounds of appeal but the focus at the hearing of the appeal was mainly on the amounts found to be due by Fermoy Fish to Canestar in relation to payments that fell to be made under the asset sale agreement At the conclusion of his judgment the learned trial judge set out a table showing payments that were required to be made under the asset sale agreement by Fermoy Fish to Canestar These consisted of the following sums Goodwill 300 000 Stock 221 000 Equipment 400 000 Commission 995 160 Total 1 916 160 In calculating the net sum found to be due to Canestar the learned trial judge took into account sums that were due on foot of the consultancy agreement from Fermoy Fish to Canestar and deducted from the overall sum due certain payments that had been made by Fermoy Fish to Canestar including what was described as payment withheld in the amount of 484 896 and the sum of 160 318 which was paid over on the signing of the ASA The emphasis of Fermoy Fish at the hearing of the appeal was on two of the items listed above namely the amount allowed in respect of stock in the sum of 221 000 and the amount allowed in respect of equipment in the sum of 400 000 I will come back to these issues in due course The other issue of importance raised in the appeal was the finding of the learned trial judge that the parties were not fiduciaries and that the non payment of the sum of 484 896 by Canestar to Fermoy Fish did not amount to a breach of trust Finally an issue was raised as to the manner in which the costs of the hearing in the High Court was dealt with Breach of fiduciary duty I propose to deal with the issue of whether or not the trial judge was correct to reject the argument made on behalf of Fermoy Fish that there was a breach of fiduciary duty by Canestar by reason of the non payment of the sums due by Canestar to Fermoy Fish Fermoy Fish had made a claim for damages for breach of fiduciary duty in the course of the pleadings That claim turned on the failure of Canestar to pass over sums totalling 484 896 which was payable pursuant to the terms of the ASA agreement in respect of payments made by customers to Canestar on behalf of Fermoy Fish in respect of the supply of fish to those customers by Fermoy Fish Fermoy Fish made the point that this was not simply a case of withholding or retaining the monies concerned it was a case of wrongfully converting the money due to Fermoy Fish to its own use As was previously mentioned these proceedings commenced with an application for a Mareva injunction and in the course of that application Mr O Regan conceded in a replying affidavit sworn on the 12th April 2006 that certain payments out of the monies received by Canestar on behalf of and due to Fermoy Fish were made amounting to approximately 451 576 to various creditors of Canestar This included a sum of 25 500 paid to the Revenue Commissioners the sum of 170 767 to Ulster Bank and 141 960 to Mr O Regan It was pointed out on behalf of Fermoy Fish in the course of the hearing that the learned trial judge in the course of his judgment made a number of comments as to the conduct of Canestar in this regard Thus at page 77 of the judgment he stated Neither was it within the spirit of the agreement to withhold payments for a few weeks to several months on the basis that further monies would be owing from the plaintiff to the defendants Further on the same page he said It was clearly an obligation on the defendants to ensure that monies would be lodged to the plaintiff s account At page 144 of the judgment he observed Canestar wrongly converted monies due and owing to Fermoy Fish At page 146 he stated The court deprecates the conversion by Canestar of sums properly due to Fermoy Fish all the more in the light of breach of warranty of insolvency Finally he observed at page 151 The Court cannot condone the non compliance with the agreement and the wrongful conversion of funds due to Fermoy Fish Notwithstanding these observations the learned trial judge rejected the contention that there had been a breach of fiduciary duty on the part of Canestar The concept of a fiduciary relationship was considered in Clements Ors v Meagher Ors 2008 IEHC 258 Feeney J at paragraph 3 1 of his judgment He said It is not possible to provide a complete definition of the categories of persons who occupy fiduciary positions The categories of fiduciary relationships are not closed and it is well recognised that fiduciary duties may be owed notwithstanding the fact that the relationship in question does not fall within one of the settled categories of fiduciary relationships That is so provided the circumstances justify the imposition of fiduciary duties A fiduciary is not subject to fiduciary obligations because he is a fiduciary it is because he is subject to them that he is a fiduciary It follows that a fiduciary is a person who owes fiduciary duties A fiduciary relationship therefore is a relationship between two or more persons in which at least one of them is a fiduciary who owes fiduciary duties to the other or others see paragraph 7 04 of the 31st Edition of Snell s Equity Whilst there is no universal or uniform description of a fiduciary relationship the approach adopted by Millett L J in Bristol and West Building Society v Mothew 1998 Ch 1 at p 18 is apposite A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence The distinguishing obligation of a fiduciary is the obligation of loyalty The principal is entitled to the single minded loyalty of his fiduciary This core liability has several facets A fiduciary must act in good faith he must not make a profit out of his trust he must not place himself in a position where his duty and his interest may conflict he may not act for his own benefit or the benefit of a third person without the informed consent of his principal This is not intended to be an exhaustive list but it is sufficient to indicate the nature of fiduciary obligations They are the defining characteristics of the fiduciary I agree with the views expressed by Feeney J as to the meaning of a fiduciary position and the nature of a fiduciary relationship In the context of this case it is in my view the case that Canestar was in a fiduciary relationship with Fermoy Fish and owed a fiduciary duty to Fermoy Fish By virtue of the agreements entered into between the parties Canestar and Mr O Regan undertook to manage the customer accounts of Fermoy Fish for a period of twenty four months in consideration of a sum of money Fermoy Fish was entitled to payments made by customers to Canestar on behalf of Fermoy Fish Clearly in circumstances where Canestar received a sum of 484 895 on behalf of Fermoy Fish it was under an obligation to pay that sum to Fermoy Fish It could hardly be thought otherwise than that Canestar had a relationship of trust and good faith towards Fermoy Fish Despite that Canestar received money belonging to Fermoy Fish from its customers and instead of paying it over to Fermoy Fish as it was obliged to do used the money to discharge its creditors and to make payments to Mr O Regan In my view having regard to the facts and circumstances of this case the learned trial judge was mistaken in coming to the conclusion that there was no breach of fiduciary duty I am satisfied that a breach of fiduciary duty has been established on behalf of Fermoy Fish Given that conclusion the question then arises as to how such a finding avails Fermoy Fish It was suggested on behalf of Fermoy Fish that the finding that there was a breach of fiduciary duty could give rise to three possible remedies 1 A claim for damages for breach of fiduciary duty 2 An entitlement on the part of Fermoy Fish to refuse to pay fees to Canestar and Mr O Regan under the consultancy agreement 3 A claim for interest at the Courts Act rate on the sum of 484 896 up to the date of judgment It should be borne in mind that as a matter of contract between the parties each was obliged to make payments to the other in accordance with the terms of the contract It was open to Fermoy Fish in the proceedings before the High Court to prove that it had suffered loss by not receiving payments in the sum of 484 896 when due and any such loss could have been quantified If that had been done any such loss could have been taken into account in determining the amount due on foot of the counterclaim of Canestar and Mr O Regan However no such evidence was adduced Accordingly even if in addition to a breach of contract there was a breach of fiduciary duty on the part of Canestar and Mr O Regan to Fermoy Fish the position is the same Therefore as was properly conceded by Mr Dignam S C on behalf of Fermoy Fish this Court cannot make an award of damages in respect of any such loss which might have existed As the matter was not addressed at first instance there is no basis for remitting the question as to whether Fermoy Fish is entitled to damages for breach of fiduciary duty and if so the amount of such damages The second issue raised related to the argument on behalf of Fermoy Fish that it was entitled to refuse to pay consultancy fees and other expenses to Canestar and Mr O Regan by virtue of the breach of fiduciary duty No authority was advanced to support such a proposition This argument was roundly rejected by the learned trial judge in the course of his judgment He made it clear that while there was undoubtedly an obligation on Canestar to ensure that money due to Fermoy Fish would be remitted to Fermoy Fish that did not justify Fermoy Fish in refusing to pay the sums due in turn to Canestar and Mr O Regan As he said at p 78 it does not seem to me that whatever the degree of misrepresentation there may have been that the plaintiff was justified in refusing to pay the defendants The sum of 191 562 found to be due by Fermoy Fish on foot of the Consultancy Agreement was made up of fees of 54 060 due in respect of consultancy a figure of 81 000 due in respect of wages and a sum of 56 512 in respect of rent It should be borne in mind that despite the breaches of the agreement that came to light in early 2006 the agreements continued in place albeit with some variations until its term expired during which period sales of 8 293 391 were achieved leading to the situation that Canestar was entitled to be paid commission in the sum of 995 160 on foot of those sales That figure was one of the sums taken into consideration by the learned trial judge in calculating the sum ultimately found to be due to Canestar and was not disputed However so far as the sum of 191 562 is concerned it is hard to see how that sum was not payable by reason of the breach of fiduciary duty and I reject the suggestion that Fermoy Fish was entitled to refuse to pay the consultancy fees and other expenses to Canestar and Mr O Regan under the Consultancy Agreement by virtue of the breach of fiduciary duty I now want to turn to the question of interest The claim for interest was first articulated by Mr Des Peelo in his report of the 13th July 2010 on behalf of Fermoy Fish He stated The summary of claims on page 3 of this report shows net monies of 285 690 owed to Fermoy Fish before interest It appears reasonable to include interest Fermoy Fish lost the use of cash converted by Canestar and re the incurred costs It is understood that Fermoy

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  • accordance with due process and the principles of natural justice While I accept that the applicant may well have believed that he had passed the employment threshold for admissibility in the light of correspondence and further that date had been fixed for the hearing of the substantive complaints nevertheless the fact remains that the Equality Tribunal had no jurisdiction to entertain these complaints given that the applicant was not an employee 10 On this appeal from that judgment Bisi Adigun conducting his own case has raised a number of points with a view to persuading this Court that Sheehan J was incorrect For the purposes of this appeal these will be considered in turn 11 Firstly he argues that any finding by the Equality Tribunal that he was not an employee was both unreasonable and irrational He argues that to say in relation to the production of the play that he was merely an accessory and not an employee flies in the face of fundamental reason and common sense This submission however is not borne out by the affidavit evidence and other papers submitted on this appeal Bisi Adigun chose to incorporate a company called Arambe Productions for the purposes of his legal dealings with the Abbey Theatre Exhibited amongst the papers is an agreement between that company and the theatre dated 18th May 2007 The interposition of a limited liability company dealing through contract with the theatre in itself undermines the complaint of Bisi Adigun that he was an employee Be that as it may the nature of the agreement further supports the judgment of the High Court The agreement specifies Arambe Productions as the licensor and the Abbey Theatre as the licensee It is clear from the nature of the document that what is involved is the granting to the Abbey Theatre of rights to produce the new version of The Playboy of the Western World It is impossible to know from reading that document or from any other of the documentation furnished on this appeal whether the claim as to the vesting of the intellectual property rights in the new version of the play is as stated therein No comment is made in that regard 12 A full reading of the agreement indicates that it concerns a licence to produce and present the play in this country in the neighbouring jurisdiction and in the United States of America Royalties are specified at 10 of gross box office receipts with certain deductions An advance payment on account of royalties is optioned and certain specific financial consequences are set out in relation to any production in the USA As regards the nature of the relations between the writers as specified in the agreement and the Abbey Theatre these are not indicative of either an existing employment relationship or any prospect of resulting employment Arambe Productions under the agreement is to receive 8 tickets for the first night the text of the players is not to change without the written approval of Arambe Productions the cast director and designer is to be agreed in consultation with Arambe Productions not to be unreasonably withheld and access is to be given to that company in respect of checking box office returns References to the writers specified in the agreement as being behind the new play include a stipulation as to the size of their billing on any poster or programme but it is Arambe Productions which contracts to have information of all arrangements in regard to the production of the said Play and of details of cast opening dates and press comment upon such productions None of this indicates that there was any possible basis upon which it could be argued that the ruling by the Equality Officer was incorrect in holding that there was no employment relationship between Bisi Adigun and the Abbey Theatre and that there was no employment thereby or otherwise open to him 13 Secondly Bisi Adigun argues that holding a preliminary hearing in relation to his alleged employment status when the substance of the case related to victimisation and discrimination amounts to a breach of the fair procedures guaranteed under the Constitution and furthermore that this is incompatible with Article 6 of the European Convention on Human Rights In proceeding as he did however the Equality Officer acted in accordance with the authority given to him in law Section 79 1A of the Employment Equality Act 1998 provides for a single hearing in respect of more than one complaint The subsection reads a Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case and b claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may in an appropriate case be so investigated but a decision shall be made on each of the claims 14 Here a number of grounds for relief were raised by Bisi Adigun and the Equality Officer was acting within the terms of the legislation in seeking to investigate these collectively Since that time it appears that Bisi Adigun has moved away from placing reliance in his claim under the Acts in respect of the commercial nature of the contract between Arambe Productions and the Abbey Theatre As the chronology set out above indicates the focus has now become that of discrimination However under the Acts any such allegation has to relate to employment or to the prospect of employment Section 79 3A of the Employment Equality Act 1998 enables preliminary issues to be tried before a full hearing The subsection reads If in a case which is referred to the Director General of the Workplace Relations Commission under section 77 a question arises relating to the entitlement of any party to bring or contest proceedings under that section including a whether the complainant has complied with the statutory requirements relating to such referrals b whether the discrimination or victimisation concerned occurred on or after 18 October 1999 c whether the complainant is an employee or d any other related question of law or fact the Director may direct that the question be investigated as a preliminary issue and shall proceed accordingly 15 While it is correct to argue that a unitary trial is the normal and most satisfactory method of proceeding with a case in court there are also many circumstances where the trial of a preliminary issue may resolve the substance of a legal dispute Even apart from the subsection quoted above it is within the scope of fair procedures before any judicial or quasi judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly Sometimes the parties will consent to that The advantage of the Employment Equality Acts is that the circumstances under which such a course may be taken by the Equality Tribunal are clearly spelt out Central to any issue as to whether redress in respect of discrimination within employment is available under the Acts is whether a person was employed or not That issue was inescapably part of and fundamental to the admissibility of a claim for redress which is defined in statute as being available only to employees Hence even apart from legislative provisions it would make sense that once the issue was raised it should be determined in advance of what was likely to be a substantial hearing The resources of courts and tribunals are limited It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross That can be fairly isolated and tried in advance There is nothing in the papers on this appeal to suggest that the Equality Officer misconstrued the relevant legislation or exercised the discretion which it gave him in any unreasonable or capricious manner 16 Related to this point is a complaint by Bisi Adigun that once a date had been set for the full hearing the cancellation of that substantive hearing through the ruling that he had no employment relationship with the Abbey Theatre constituted some form of unfairness or the breach of a legitimate expectation This third point is also unsustainable It is within the scope of the Acts that preliminary issues can be tried and ruled on either in advance of the substantive hearing of which they form part or in order to obviate the necessity for such a hearing Every tribunal and court has a duty to move with reasonable expedition Litigation is a stressful and unfamiliar experience for those who initiate a claim or who are called on to respond Shakespeare has Hamlet bemoan the lack of progress in litigation as part of the ills of life the whips and scorns of time the oppressor s wrong the proud man s contumely the pangs of despis d love the law s delay the insolence of office The Equality Officer on the relevant correspondence was motivated by the need to both grasp the essentials of the case and to move it along towards resolution one way or the other There is a range of appreciation in respect of the conduct of quasi judicial bodies which should be respected Clear statutory authority for the Equality Officer s actions existed In addition reasonable decisions as to how a case should proceed are not to be substituted even by a contrary reasonable view That is not the function of judicial review There is also a misunderstanding here of how the doctrine of legitimate expectation might interact with fair procedures It is not necessary to express any view on this matter In this context legitimate expectation has no application since the setting of a date which became unnecessary due to the resolution of the preliminary issue as to entitlement to redress meant that there was no function in the Equality Tribunal It could no longer make any ruling that could be of any benefit to Bisi Adigun As Fennelly J remarked in Glencar Explorations Limited v Mayo County Council No 2 2002 1 IR 84 at 162 the doctrine of legitimate expectation is related to that of promissory estoppel For that principle to apply there must be clear and unequivocal promise or assurance which is intended to affect the legal relations between parties to a transaction which is understood as such and before it is withdrawn the party to which the representation is made acts upon it in such a way that it would be inequitable to permit the first party to withdraw the promise to act inconsistently with it McGhee Ed Snell s Equity 32nd Ed London 2010 at 370 371 These conditions do not apply here 17 All the parties to this appeal were agreed and even without that agreement it is implicit in the legislation that the Acts do not provide for redress where a person was not employed by the respondent or where there was no prospect of employment open Even if legitimate expectation could apply in this context and nothing more than a bare argument has been advanced in that regard had the Equality Tribunal proceeded to hearing the substance of the case having ruled that Bisi Adigun had never been employed by the Abbey Theatre it would have been a clear breach of its statutory remit Plainly there was no jurisdiction Redress under Article 6 of the European Convention on Human Rights has not been argued on this appeal by the citation of any relevant case law Suffice it to say however that within the context of employment had there been discrimination or victimisation a reasonable prospect of redress was open before the Equality Tribunal had facts been found in favour of Bisi Adigun This point also is therefore dismissed 18 Fourthly Bisi Adigun complains that as between him and his co author the Abbey Theatre favoured his collaborator over him Within the terms of the agreement between Arambe Productions and the Abbey Theatre referenced above there was nothing within its text which could have turned that commercial relationship to assign the right to put on a play in a theatre into an employment relationship Furthermore any complaint in relation to the alleged victimisation comes entirely from documents penned by Bisi Adigun in the aftermath of what seems to have been the ordinary ups and downs of human relations The complaint by Bisi Adigun of victimisation in relation to any alleged Theatre is supported by no more than his own allegation Even in itself it is unsupported by any confirmatory detail That preliminary comment aside the function of the Equality Tribunal lies entirely within its statutory remit Bisi Adigun complains that having been disfavoured as he claims it is against the principles of justice that he should have nowhere to turn for redress This however ignores the fact that it was he who decided that the statutory remedy invoked by him in his application to the Equality Tribunal was appropriate He further makes a general point that there is nowhere else in Irish law to which he could have turned in order to find a remedy Fundamentally however Bisi Adigun has not demonstrated that his ostensibly primary complaint of favouring one author over another in terms of the production of a co authored play amounts to anything which is outside the terms of the agreed contract with which Arambe Productions bound itself in its relations with the Abbey Theatre Whether it is or it is not would be a matter for commercial litigation between Arambe Productions and the Abbey Theatre It would have nothing to do with judicial review The incorporation was favoured no doubt because of the advantages that it would bring That occlusion through the corporate veil of human interaction and the binding into specific written obligations through contracts between two legal entities Arambe Productions and the Abbey Theatre has meant that the primary source if not the only source of the definition of the obligations of each side is to be found in the referenced agreement While the Court on this appeal was not informed of the litigation which resulted from that set of mutual obligations it is clear that remedies in contract were available should a breach have been provable Even apart from the existence of contract remedies and the choice of the Employment Equality Acts 1998 to 2004 as the vehicle for Bisi Adigun to air his complaints it has not been demonstrated by him on appeal that he was left otherwise unable to find a remedy under statute or otherwise This point therefore fails 19 Lastly Bisi Adigun complains that Sheehan J erred in law by disregarding all issues in relation to equal treatment and did not allow him a remedy which would enable him to pursue an adequate means of earning a livelihood It is clear however from the extract of the judgment of Sheehan J quoted above that great care was exercised in the analysis of the fundamental points raised on that judicial review Here there may be a misunderstanding by Bisi Adigun of the nature of judicial review This remedy was chosen by him in preference to a full appeal to the Labour Court This is provided for in section 83 of the Employment Equality Act 1998 Further under that section where the determination of an appeal on a preliminary issue is in favour of the complainant the matter is referred back for the investigation of the substantive issue The appeal remedy exists in order to right any findings of fact within the jurisdiction of the Equality Officer It is a full redress in respect of any alleged error Judicial review on the other hand is focused on jurisdiction and on procedure An applicant choosing this remedy over on appeal cannot reargue the facts but instead must demonstrate that the tribunal has moved outside the boundaries of its jurisdiction or has acted so unreasonably in terms of fact as to invalidate its decision or has fallen into unconstitutional procedures This is not a rehearing of the facts as an appeal would be in these particular circumstances as defined by statute but an analysis of the process In that context the ruling by Sheehan J again cannot be faulted 20 Additional points were argued on the written submissions but were not advanced by oral argument These grounds include an allegation that the secretariat of the Equality Tribunal erred in law in requesting a submission in September 2008 from Bisi Adigun as a prerequisite to referring the claim to an Equality Officer It appears that this allegation is incorrect and that the request was not a prerequisite Even if it had been it is for tribunals to choose reasonable procedures for the purpose of advancing their work There could be nothing unreasonable about requesting a statement of what facts would be alleged with a view to elucidating grounds that had previously been flagged only by a tick on an application form Another argument made in writing was that there was an unlawful and purposive delay by the Equality Tribunal in assigning the case Every tribunal will have work pressures There is nothing in the chronology to indicate that there was any decision to treat the claim of Bisi Adigun in any other way than that of any other complainant before the tribunal Bisi Adigun has no entitlement to any special treatment Reasonable expedition was clearly the object of the administrative side of the preparation of this case That cannot be unlawful Then as a final matter there was a further complaint that there was unlawful delay in issuing the decision on the preliminary hearing This took place on 10th September 2010 Given that the ruling issued two months later on 17th November 2010 and that complex issues of law had been argued this was not unreasonable even if as Bisi Adigun contends an earlier date was indicated Furthermore it is difficult to see any such ground being within the scope of judicial review 21 It therefore follows that this appeal should be dismissed on all grounds An Chúirt Uachtarach The Supreme Court Record number 2011 310 JR Appeal number 356 2011 O Donnell J McKechnie J Charleton J Between Bisi Adigun Applicant Appellant and The Equality Tribunal Respondent Judgment of Mr Justice Charleton delivered on Tuesday the 8 th day of December 2015 1 John Millington Synge s drama The Playboy of the Western World was first performed at the Abbey Theatre in January 1907 The playwright s dialogue is heavily influenced by the Irish language with its distinctive syntax and grammar Whether this classic play might benefit from updating as to speech or otherwise is outside the scope of this legal controversy but for whatever reason coming up to the centenary of that production a new version was staged at the Abbey Theatre in 2007 and it was apparently repeated the following year Bisi Adigun was one of the distinguished writers who worked on the recasting of the text of the play 2 For causes which are outside the scope of this appeal Bisi Adigun was not satisfied with aspects of the manner in which the Abbey Theatre related to him There has been contractual litigation related to the production which has been referred to on this appeal the details of which were not part of this case On 29th May 2008 Bisi Adigun filed a complaint before the Equality Tribunal the respondent herein under the Employment Equality Acts 1998 to 2004 asserting that he had been discriminated against by the Abbey Theatre The originating document for such a complaint requires an applicant to tick boxes under various headings In describing his complaint Bisi Adigun ticked the boxes relating to access to employment and other writing after it withholding payment The complaint specified that the first discriminatory act took place on 24th December 2007 and he asserted that the most recent occurrence was on 16th April 2008 In briefly outlining his alleged complaint Bisi Adigun wrote My company Arambe Productions was contracted by The Abbey Theatre to permit the Abbey to produce a new version of The Playboy of the Western World However the Abbey have refused to honour the letters of our contract by withholding the balance of our royalties totalling 20 860 50 I have made several representations verbally and in writing including attending mediation meetings by mutual friends to no avail To further discriminate against me the Abbey have notified me of their intention to sidestep me and my company and deal directly with the writer whom Arambe had commissioned and paid to co write The Play with me because he is white and Irish I am convinced that I have been subjected to this ill treatment for the past five months simply because of my race I hope that you will use your good offices to bring the Abbey Theatre to reason 3 On 19th April 2010 Bisi Adigun wrote to the registrar of the Equality Tribunal and said I write to request that Victimisation be officially added to the list of my complaints against The Abbey Theatre in the above matter 4 Early in the process on 5th June 2008 in a letter from its solicitors the Abbey Theatre set out the essence of its response to the complaint of Bisi Adigun In part this read The complaint is not admissible under the legislation as neither Bisi Adigun or his production company is or at any time has been an employee of our client While this disposes of the matter we would further point out that we and our client have been engaged in substantive correspondence with Mr Adigun and Arambe Productions in relation to Mr Adigun s dispute with our client We are happy to provide you with copies of this correspondence if required although this would hardly seem necessary for the Tribunal s purposes Suffice to say that we confirmed that the dispute has absolutely nothing to do with discrimination of any sort Mr Adigun s dispute with our client in fact revolves entirely around the consequences of the serious breach of Arambe Productions contract with our client and an underlying claim being made by another person against Arambe Productions relating to a breach of this person s intellectual property rights We confirm that we are taking appropriate legal measures to protect our client s position none of which involve any employment discrimination aspects Accordingly Mr Adigun s allegations of racial discrimination as set out in his complaint are entirely groundless In light of the above our client regrets that the Tribunal s time is being wasted on what is a commercial dispute involving no employment relationship and I would be grateful if you could therefore please confirm by return that the complaint will be dismissed 5 Extensive submissions were received by the Equality Tribunal from both sides On 14th July 2010 the Equality Officer appointed to investigate the case informed the parties that he had decided that a preliminary issue had arisen which should be scheduled for a hearing on 10th September 2010 The reasoning for settling such an issue emerges from the letter as addressed to Bisi Adigun thus Entitlements and obligations under the Acts are premised inter alia on the existence of an employment relationship between the parties It appears to me from perusal of the submissions filed by both parties that the question arises as to whether or not you were an employee of the respondent at the relevant time and thus have the locus standi to maintain your complaint before this Tribunal 6 There were further submissions received by the Equality Tribunal on this issue In order to expeditiously process the matter in addition to the date for the preliminary issue the substantive hearing was fixed by the Equality Tribunal for a date in December 2010 At the hearing of the preliminary issue both sides were represented by counsel On 17th November 2010 the Equality Officer issued his decision and determined that firstly Bisi Adigun had never been an employee of the Abbey Theatre and that secondly no employment was open in that organisation to which Bisi Adigun or it follows from the reasoning anyone else might apply The written ruling held that the Equality Tribunal had no jurisdiction to determine the complaint of discrimination referred and that any issue as to victimisation in employment did not arise Bisi Adigun then sought leave to commence judicial review proceedings against the Equality Tribunal which was granted by Peart J on 15th April 2011 The substantive hearing took place before Sheehan J on 29th July 2011 in the High Court and the claim was dismissed 7 As a preliminary objection on this appeal the Equality Tribunal claims that all issues relating to its ruling that it lacked jurisdiction to determine the complaint is now moot This Court has been informed that litigation involving Bisi Adigun and the Abbey Theatre has been settled Neither the nature of the litigation nor the issues involved nor the terms of the settlement have been proved on this appeal Furthermore the parties to that litigation are different to those on this appeal If the settlement covers the complaint here that is something for the Abbey Theatre to raise If so that might render these proceedings moot but there is no evidence on that point At issue here is the correctness of the procedure before the Equality Tribunal and it is with that which this judicial review appeal is concerned 8 The Equality Tribunal is a creature of the Employment Equality Acts 1998 to 2004 and it operates as a statutory remedy that is apart from justiciable controversies which may be brought before the court system Central to the remedies sought by Bisi Adigun is the definition of employment and it was upon this that his claim for redress failed The remedies sought are only available in the context of employment Four definitions taken from section 2 of the Employment Equality Act 1998 informed the decision of the Equality Tribunal and they were also central to the analysis conducted in the judicial review of that decision in the High Court These definitions follow contract of employment means subject to subsection 3 a a contract of service or apprenticeship or b any other contract whereby i an individual agrees with another person personally to execute any work or service for that person or ii an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person whether or not the other person is a party to the contract whether the contract is express or implied and if express whether oral or written dismissal includes the termination of a contract of employment by the employee whether prior notice of termination was or was not given to the employer in circumstances in which because of the conduct of the employer the employee was or would have been entitled to terminate the contract without giving such notice or it was or would have been reasonable for the employee to do so and dismissed shall be construed accordingly employee subject to subsection 3 means a person who has entered into or works under or where the employment has ceased entered into or worked under a contract of employment and where the context admits includes a member or former member of a regulatory body but so far as regards access to employment does not include a person employed in another person s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons employer subject to subsection 3 means in relation to an employee the person with whom the employee has entered into or for whom the employee works under or where the employment has ceased entered into or worked under a contract of employment For the sake of completeness section 2 3 referenced above is also quoted 3 For the purposes of this Act a a person holding office under or in the service of the State including a member of the Garda Síochána or the Defence Forces or otherwise as a civil servant within the meaning of the Civil Service Regulation Act 1956 shall be deemed to be an employee employed by the State or Government as the case may be under a contract of service b an officer or servant of a local authority for the purposes of the Local Government Act 1941 a harbour authority a health board or a member of staff of an education and training board shall be deemed to be an employee employed by the authority or board as the case may be under a contract of service c in relation to an agency worker the person who is liable for the pay of the agency worker shall be deemed to be the employer d in the case of a contract mentioned in paragraph b i of the definition of contract of employment i references in this Act to an employee shall be construed as references to the party to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed ii any comparisons to be made for any of those purposes shall be between persons personally executing work or service for the same person or an associated person under such a contract or contracts and iii in particular and without prejudice to the generality of the foregoing references in sections 19 4 a and 22 1 a to employees shall be construed as references to those persons 9 In the High Court Sheehan J dismissed the judicial review application of Bisi Adigun ruling as follows The central issue that arises in this application is whether there was any serious error in the manner in which the equality officer carried out his inquiry and hearing into the question of the applicant s employment status and whether or not his conclusion was based on any unsustainable finding of fact I hold that the employment points raised by Mr Adigun in the course of his written and oral submissions to this Court were considered by the equality officer and this can be seen from his affidavit from the concluding remarks of his judgement which I now quote I have completed my investigation of this complaint and made the following decision in accordance with section 79 6 of the Employment Equality Acts 1998 2008 I find that the complainant was never an employee of the respondent in terms of section 2 of the Acts and he therefore does not have the locus standi to maintain his complaint before this Tribunal in respect of the alleged discriminatory treatment on grounds of race in terms of section 6 subsection 2 of the Acts as regards his conditions of employment The complainant was never an employee of the Abbey Theatre and he therefore does not have the locus standi to maintain his complaint before this Tribunal in respect of the alleged victimisation of him and there was no employment available or on offer in December 2008 when the Abbey Theatre exercised its entitlements under clause 12 of the agreement of the 18th May 2007 between it and Arambe Productions and it did not therefore deny the complainant access to employment contrary to the Acts or at all and the complainant s case fails in its entirety I am satisfied that the equality officer was entitled to hold a hearing into the preliminary issue as to the applicant s employment status and I m satisfied that the applicant was fully represented at the hearing and had a full opportunity to make all necessary submissions through his counsel I m further satisfied that the equality officer gave careful consideration to the matter before issuing his direction I can detect no error of law nor any unsustainable finding of fact on which the respondent s decision was reached I hold that this inquiry was conducted fairly and in accordance with due process and the principles of natural justice While I accept that the applicant may well have believed that he had passed the employment threshold for admissibility in the light of correspondence and further that date had been fixed for the hearing of the substantive complaints nevertheless the fact remains that the Equality Tribunal had no jurisdiction to entertain these complaints given that the applicant was not an employee 10 On this appeal from that judgment Bisi Adigun conducting his own case has raised a number of points with a view to persuading this Court that Sheehan J was incorrect For the purposes of this appeal these will be considered in turn 11 Firstly he argues that any finding by the Equality Tribunal that he was not an employee was both unreasonable and irrational He argues that to say in relation to the production of the play that he was merely an accessory and not an employee flies in the face of fundamental reason and common sense This submission however is not borne out by the affidavit evidence and other papers submitted on this appeal Bisi Adigun chose to incorporate a company called Arambe Productions for the purposes of his legal dealings with the Abbey Theatre Exhibited amongst the papers is an agreement between that company and the theatre dated 18th May 2007 The interposition of a limited liability company dealing through contract with the theatre in itself undermines the complaint of Bisi Adigun that he was an employee Be that as it may the nature of the agreement further supports the judgment of the High Court The agreement specifies Arambe Productions as the licensor and the Abbey Theatre as the licensee It is clear from the nature of the document that what is involved is the granting to the Abbey Theatre of rights to produce the new version of The Playboy of the Western World It is impossible to know from reading that document or from any other of the documentation furnished on this appeal whether the claim as to the vesting of the intellectual property rights in the new version of the play is as stated therein No comment is made in that regard 12 A full reading of the agreement indicates that it concerns a licence to produce and present the play in this country in the neighbouring jurisdiction and in the United States of America Royalties are specified at 10 of gross box office receipts with certain deductions An advance payment on account of royalties is optioned and certain specific financial consequences are set out in relation to any production in the USA As regards the nature of the relations between the writers as specified in the agreement and the Abbey Theatre these are not indicative of either an existing employment relationship or any prospect of resulting employment Arambe Productions under the agreement is to receive 8 tickets for the first night the text of the players is not to change without the written approval of Arambe Productions the cast director and designer is to be agreed in consultation with Arambe Productions not to be unreasonably withheld and access is to be given to that company in respect of checking box office returns References to the writers specified in the agreement as being behind the new play include a stipulation as to the size of their billing on any poster or programme but it is Arambe Productions which contracts to have information of all arrangements in regard to the production of the said Play and of details of cast

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  • were adjudicated bankrupt by the High Court Charleton J on the 23rd August 2013 The appellants sought a stay but this was refused on the 2nd September 2013 29 Once a person is declared a bankrupt their property rights in the estate vest in the Official Assignee 30 Section 44 of the Bankruptcy Act 1988 provides 1 Where a person is adjudicated bankrupt then subject to the provisions of this Act all property belonging to that person shall on the date of adjudication vest in the Official Assignee for the benefit of the creditors of the bankrupt 2 Subject to the provisions of this Act the title of the Official Assignee to any property which vests in him by virtue of subsection 1 shall not commence at any date earlier than the date of adjudication 3 The property to which subsection 1 applies includes a all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication b all property which was the subject of any conveyance or transfer which sections 57 58 and 59 declare void as against the Official Assignee subject to the rights of any persons which are preserved by those sections 4 The property to which subsection 1 applies does not include a property held by the bankrupt in trust for any other person or b any sum which vests in the Official Assignee under section 7 1 a of the Auctioneers and House Agents Act 1967 or section 30 i of the Central Bank Act 1971 5 Without prejudice to any existing principle or rule of law or equity established practice or procedure in relation to damages or compensation recovered or recoverable by a bankrupt for personal injury or loss suffered by him property which is acquired by or devolves on a bankrupt before the discharge or annulment of the adjudication order in this Act called after acquired property shall vest in the Official Assignee if and when he claims it 31 The term property is defined in s 3 of the Act of 1988 as amended by the European Communities Personal Insolvency Regulations 2002 as follows property a includes money goods things in action land and every description of property whether real or personal b includes obligations easements and every description of estate interest and profit present or future vested or contingent arising out of or incident to property c in relation to proceedings opened in the State under Article 3 1 of the Insolvency Regulation includes property situated outside the State and d in relation to proceedings so opened under Article 3 2 of the Regulation does not include property so situated Clearly this includes things in action and thus the right to litigate is part of the property 32 Consequently any decision as to property rights is vested in the Official Assignee including the decision to litigate whether to commence litigation or continue litigation 33 However a bankrupt retains rights of litigation in personal matters 34 Certain personal actions do not vest in the Official Assignee As Hoffman L J said in Heath v Tang 1993 4 All ER 694 at p 697 these include cases in which the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body mind or character and without immediate reference to his rights of property See Beckham v Drake 1849 2 HL Cas 579 at 604 9 ER 1213 at 1222 per Erle J See also Wilson v United Counties Bank Ltd 1920 AC 102 1918 1919 All ER Rep 1035 35 In general the appropriate forum in which to seek and in which to have a decision made as to whether a bankrupt may initiate or continue proceedings is by an application to the Official Assignee 36 If the Official Assignee does not approve of the commencement or continuation of litigation then the bankrupt may apply to the Bankruptcy Court 37 As Hoffman L J said in Heath v Tang at p 701 The consequences for the bankrupt s right to litigate do not seem to us inconvenient or productive of justice The bankruptcy court acts as a screen which both prevents the bankrupt s substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims 38 In this case the extension of time application is in relation to the proposed appeal in a case about property claimed to be owned by the appellants who are bankrupts It is not personal litigation It is thus a matter for the Official Assignee 39 In spite of the appropriate forum for an application regarding litigation by a bankrupt being an application to the Official Assignee or thereafter an application to the Bankruptcy Court in the special circumstances of this case the Court exercises its discretion and determines the application for an extension of time for leave to appeal in this case 40 However it is emphasised that the appropriate route is to request the Official Assignee to commence or continue litigation If the Official Assignee refuses then the bankrupt may apply to the Bankruptcy Court The Bankruptcy Court may then assess the situation with the benefit of submissions from the Official Assignee All such applications should be made in that manner Thus if there are claims where the litigation may be hybrid i e some of which relates to the estate and some of which may be personal claims the Bankruptcy Court can hear and determine such applications However it was accepted that in the circumstances of this case that the Supreme Court should hear and determine an application seeking an extension of time However for clarity it is stressed that applications in relation to proceedings in an estate in bankruptcy either commencing or continuing litigation are firstly a matter for the Official Assignee and thereafter the Bankruptcy Court 41 The only issue for the Court to determine is whether the appellants have locus standi to move the application 42 In the proceedings in issue the order of the High Court of 12th December 2011 relates to property in the estate of the appellants who are bankrupts Thus the property is vested in the Official Assignee Therefore it is for the Official Assignee to determine whether these proceedings are to be continued or not 43 The appellants do not have locus standi to bring this application the property and the right to litigate being vested in the Official Assignee 44 The appellants raised the issue that the order of the 12th December 2011 founded the bankruptcy decision I am satisfied that this is not relevant I agree with and would apply the analysis in Heath v Tang 1993 4 All ER 694 where Hoffmann L J stated at p 700 Is there anything different about the judgment upon which the bankruptcy petition was founded It is submitted that the difference is that in such a case the bankrupt does have an interest because if he can get rid of the judgment he may be able to have the bankruptcy order annulled on the ground that it should never have been made Whether it is set aside or not will depend upon whether apart from the judgment the bankrupt would have been solvent or whether an order would in any event have been made on the application of supporting creditors see Re Noble a bankrupt ex p the bankrupt v Official Receiver 1964 2 All ER 522 1965 Ch 129 On the other hand it may equally be said that if only the bankrupt could pursue a claim for a large sum which he claims to be owing to him he would be able to pay all his creditors and have the bankruptcy annulled on that ground It is clear however that this is not a ground upon which he may bring proceedings Furthermore an exception for the petitioner s judgment would give rise to anomalies in cases in which the defence was a claim of set off such as the applicant Mr Heath asserts in this case 45 The appellants have made submissions raising issues of objective bias of the High Court judge and fraud in relation to the parties On these issues I agree with the analysis of Hoffman L J in Heath v Tang where he stated at p 701 The bankrupt criticises the conduct of the trial and contends that the decision against him was obtained by false evidence and fraud The trustee does not wish or is not in a position to pursue the appeal In my judgment the bankrupt has no locus standi to do so and his application must be refused The fundamental principle in law is that the right to litigate is vested in the Official Assignee and it is for him to decide whether to litigate or not 46 Accordingly in this case the right to seek an extension of time for leave to appeal vests in the Official Assignee The appellants have no locus standi 47 The Official Assignee has indicated that he does not intend to proceed with this appeal 48 Consequently I would dismiss the application of the appellants on the grounds that they do not have locus standi to bring the motion THE SUPREME COURT Appeal No 344 14 Denham C J MacMenamin J Laffoy J Between The Governor and Company of Bank of Ireland Plaintiff Respondent And Brian O Donnell and Mary Patricia O Donnell Defendants Appellants Judgment delivered on the 8th day of December 2015 by Denham C J 1 Brian O Donnell and Mary Patricia O Donnell the defendants appellants referred to as the appellants have brought a motion against the Governor and Company of the Bank of Ireland the plaintiff respondent referred to as the respondent 2 The appellants have brought the motion seeking i To apply to the Court for leave to extend time to appeal the order of Kelly J dated the 12th December 2011 which was perfected on the 14th December 2011 ii Such further or other relief as the Court may seem just and iii An order for the costs of the application 3 In essence this is an application for leave to extend time to appeal the order of Kelly J perfected on the 14th December 2011 Background facts 4 The application is grounded on an affidavit of Brian O Donnell who made the affidavit on behalf of the appellants and referred to certain facts He stated that he wished to apply to the Supreme Court to ask for the summary judgment order made on the 12th December 2011 perfected on the 14th December 2011 in the High Court be voided or set aside He stated that the proceedings were issued by the respondent on the 23rd December 2010 with a return date of 5th January 2011 to hear the application of the respondent to enter the application for summary judgment into the Commercial List Submissions of Appellants 5 The appellants state that the learned High Court judge did not make known any conflicts of interest or existing relationship with the respondent 6 The appellants refer to the fact that there were a number of motions before Kelly J and that on every occasion he decided in favour of the respondent 7 At that time Kelly J was running the Commercial List 8 The appellants submitted that Kelly J had an ownership stake in and a business relationship with Bank of Ireland 9 The appellants allege objective bias on the part of Kelly J arising out of his comments the email correspondence between the respondent and the registrar of Kelly J on the 13th September 2011 10 The appellants submitted that the judgment of 12th December 2011 should not stand 11 Reference was made to the decision of this Court in Goode Concrete 2013 IESC 39 and it was submitted that it should be applied 12 The appellants seek an order extending time within which to appeal the order of the 12th December 2011 on the grounds of lack of disclosure and objective bias Submissions of Respondent 13 The respondent has submitted that the relief sought by the appellants should not be granted essentially for three reasons a The appellants having been adjudicated bankrupt by order of the High Court on 3rd September 2013 have no locus standi to seek to appeal the judgment or to apply to extend time to bring such an appeal any such standing vesting solely in the Official Assignee and the application should accordingly be dismissed in limine b That in any event the appellants fail to satisfy any of the Éire Continental principles in particular where the appellants consented to the judgment and did not seek to raise any objection to the High Court entering judgment when they had ample opportunity to do so they have no bona fide defence to the judgment and accordingly no bona fide ground for appeal of the judgment the identity of the High Court judge who entered the judgment is immaterial in the circumstances c It would in any event be wholly inequitable to permit the appellants to appeal at this juncture in circumstances where the judgment has formed the basis of the bankruptcy proceedings against the appellants commenced in mid 2012 and of separate proceedings commenced in July 2012 alleging a fraudulent scheme to frustrate enforcement of the judgment and where the validity of the judgment has never been challenged by the appellants in those proceedings Submissions of Official Assignee 14 The Official Assignee submitted that the appellants had not sought to have the Official Assignee bring the application to extend time to appeal that he had not been served with the application and that he had not received the papers until after the 10th October 2014 when they were furnished by the respondent 15 As to the question of whether he wishes to continue litigation commenced before the adjudication of bankruptcy for the benefit of this estate the Official Assignee has submitted that he has considered the litigation and in this case he does not wish to pursue it 16 The Official Assignee submitted that the appellants could have brought an application to the High Court in bankruptcy requiring the Official Assignee to apply for the extension of time to appeal 17 However the Official Assignee accepted that the Supreme Court could consider an extension of time application by its nature 18 The Official Assignee submitted that the appellants did not have locus standi to bring this application The Official Assignee submitted that all property of the bankrupts vests in the Official Assignee on the date of the adjudication of bankruptcy pursuant to s 44 of the Bankruptcy Act 1988 the Act of 1988 That property includes things in action as provided for in s 3 of the Act of 1988 which includes the right to litigate 19 The Official Assignee submitted that it is clear from s 44 of the Act of 1988 Quinn v IBRC 2012 IEHC 261 and Heath v Tang 1993 4 All ER 694 that the right to appeal these proceedings vests in the Official Assignee 20 The Official Assignee submitted that having regard to Heath v Tang 1993 4 All ER 694 at 700 the fact that the judgment in question is the judgment upon which the petition of bankruptcy is based is not relevant The issue is one that affects the estate in bankruptcy which is vested in the Official Assignee 21 In this case the Official Assignee while maintaining that the correct forum was elsewhere submitted that if the parties and the Court believed that the matter could be determined more quickly and less expensively by the Court determining the motion for an extension of time he would not interfere Decision 22 This application relates to summary judgment proceedings commenced by the respondent on the 23rd December 2010 The proceedings came on for hearing in the High Court on the 3rd March 2011 The proceedings were settled by an agreement dated the 4th March 2011 At that time the appellants were legally represented by solicitor and counsel 23 Inter alia the agreement acknowledged that the appellants had no defence to the proceedings see Clause 3 3 a and it provided for the making of payments Also in the Agreement the appellants acknowledged that they had received legal advice prior to entering into the Agreement see Clause 4 1 24 At Clause 3 1 of the Agreement it is provided that the proceedings were to be adjourned generally with liberty to re enter on 2 business days notice for the purpose of enforcing these Terms of Settlement 25 The matter was re entered and orders made on the 12th December 2011 by Kelly J The appellants were not present although a legal representative did attend but indicated that he had no instructions 26 The matter in issue came before the High Court Kelly J pursuant to the respondent s notice of re entry of proceedings dated the 7th December 2011 for the following reliefs 1 An Order re entering these proceedings 2 An Order by way of enforcement of clause 3 2 of the Settlement Agreement of the 4th day of March 2011 between the respondent in this motion and each of the appellants Avoca Properties Limited Grey stoke Societé Anonyme and Vico Swiss Holdings AG the Settlement Agreement giving the respondent judgment against the appellants in the sum of 71 575 991 29 made up of the principal sum of 63 700 000 together with interest of 7 875 991 29 3 An Order for the costs of the proceedings including the costs of this application 27 On the 12th December 2011 the learned trial judge ordered as follows And on reading said Notice the Affidavits of Service thereof the Affidavit of Des Hanrahan filed on the 7th day of December 2011 and the exhibits referred to in said Affidavit

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