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  • function of this Court to express a view on the Scheme Proposals which will be the function of the High Court under s 24 of the Act of 1990 if the examinership proceeds the information contained in the Scheme Proposals which was not before the High Court is pertinent to the determination of the core issue which this Court has to determine on the appeal whether it can be satisfied that the Company has a reasonable prospect of survival as a going concern In broad terms the Scheme Proposals envisage funds of 150 000 being available to implement the proposals Those funds are to be made up of a input in the sum of 120 000 by two outside investors who have been identified comprising a long term loan in the sum of 60 000 to the Company and an investment in shares of the Company in the sum of 60 000 and b Company funds in the amount of 30 000 which have been generated since the Interim Examiner was appointed The proposed treatment of the creditors differentiates between various classes of creditors and in very broad terms provides as follows i the so called Retention of Title creditors which class I assume primarily relates to Profile 22 will have the option of exercising their retention of title rights ii the so called Lien Creditor meaning the liquidator of SEL will be repaid the debt due to SEL in liquidation by sixty equal monthly instalments the first instalment to be paid on 1 st January 2014 iii the Revenue Commissioners debt is to be paid in full 21 of it which amounts to 87 500 to be paid within thirty days of the Scheme becoming effective and the balance over a period of seven years by three monthly equal instalments the first instalment payable on 31 st March 2014 and iv the Company s landlord and the unsecured creditors will be paid 2 5 of their respective debts within thirty days of the Scheme becoming effective Apart from meeting the foregoing payments the funds available will have to meet the costs of the examinership which have been estimated at 52 000 As regards the owner of 100 of the issued share capital of the Company Mr Quaid counsel for the Company pointed out that his shareholding will be diluted on the allotment of shares to the outside investors 19 The Revenue Commissioners have reserved their rights as regards the Scheme Proposals and in particular the right to make submissions in respect of the proposals if and when the issue of confirmation of such proposals has to be determined by the Court in accordance with s 24 of the Act of 1990 Counsel for the Revenue Commissioners submitted that this Court should be sceptical as to whether an injection of 120 000 is going to transform the fortunes of the Company and enable it to pay back the Revenue Commissioners and to avoid further arrears of tax accruing in the future In particular he highlighted that the costs of the examinership 52 000 and the first payment to the Revenue Commissioners 87 500 is coming out of that investment the conclusion this Court was invited to draw being that there is no clear evidence before this Court now that the Company has a reasonable prospect of survival as a going concern 20 Counsel for the Revenue Commissioners also questioned the reliability of projections in relation to cash flow and profitability contained in the Independent Accountant s Report which was before the High Court when compared with the actual performance of the Company during the eight weeks of the interim examinership prior to the hearing in this Court and of the projections of the Interim Examiner appended to his letter dated 27 th November 2013 for the following six weeks There are undoubtedly inconsistencies in that data which are difficult to reconcile or rationalise The strongest point made by the Interim Examiner in support of his recent projections is that they were based on a very strong order book and the current debtor s ledger as at 27 th November 2013 Conclusions 21 Adopting the approach adopted in In the Matter of Gallium Limited the first question to be addressed is whether the petitioner has got over the threshold stipulated in s 2 2 of the Act of 1990 and has satisfied this Court on the evidence adduced both before and since the order of the High Court that the Company has a reasonable prospect of survival as a going concern Although having regard to the analysis of the evidence conducted by counsel for the Revenue Commissioners it must be acknowledged that this is very much a borderline case the conclusion I have come to is that the Company has got over the threshold The fact that both the Independent Accountant s Report and the various reports of the Interim Examiner clearly and unequivocally support it is the most important factor in reaching that conclusion 22 On an application to court under s 2 the court is usually to a very considerable extent reliant on the report of the independent accountant which is required to accompany the petition in accordance with s 3 3A and 3B of the Act of 1990 although it may be supplemented in a case where an interim examiner has been appointed by the court by the report furnished by the interim examiner to the court at the hearing of the petition in determining the crucial question as to whether it is satisfied that the company has a reasonable prospect of survival as a going concern That being the case while it is appreciated that the directors of the company will be the primary source of the material on which they form their respective opinions as to the prospect of the company surviving both the independent accountant and the interim examiner must act independently of the company and of its directors and members in giving their respective opinions to the court Further s 4A of the Act of 1990 imposes a strict duty of utmost good faith in the preparation of the presentation of the petition on the petitioner and on the independent accountant It is particularly important that both the independent accountant and where appropriate the interim examiner are scrupulous in discharging their duty which involves giving the Court the benefit of their independent opinion setting out the reasons for it and where appropriate indicating any contrary factors In this case genuine concerns have been raised and cogent arguments made on behalf of the Revenue Commissioners I am of the view on balance however that there is not a sufficient basis for rejecting the opinions put before this Court in the Independent Accountant s Report and in the various reports furnished by the Interim Examiner that the Company has a reasonable prospect of survival and accordingly on balance I accept that is so 23 Turning to the wide discretion which the petitioner having got over that threshold is reposed in the Court having regard to all of the circumstances I consider that the discretion should be exercised in favour of continuing the protection of the Court and appointing the Interim Examiner as examiner for the purposes of s 2 1 of the Act of 1990 On the evidence now before this Court it is reasonable to conclude that an examinership would be more advantageous to the creditors as a whole than a winding up of the Company which is the only alternative It is of particular relevance that no creditor has opposed the appointment of an examiner Three of the major creditors Profile 22 the liquidator of SEL in liquidation and the Company s landlord have signified support for the petition While the Revenue Commissioners the largest creditors apprised the Court of their concerns it was made clear that they were not opposing the petition The interests of the Company s thirty one employees who would inevitably become unemployed if the application were refused favour continuing the protection of the Court and appointing the Interim Examiner as examiner At this point in time the interim examinership has been in place for over two months and a considerable amount of work has been done by the Interim Examiner in examining the affairs of the Company and in formulating the Scheme Proposals Subject to the observations in the next paragraph the overall picture at this point in time indicates that the continuance of the protection and the appointment of the Interim Examiner as examiner is the course which is least prejudicial to the interested parties and in particular to the creditors as a whole 24 As has been made clear earlier although they have been outlined in very general terms nothing in this judgment is to be construed as an endorsement of the Scheme Proposals which will if appropriate be considered at a hearing under s 24 and where interested parties will have the opportunity of making their views known On the contrary it does seem that a very meagre provision is made in the Scheme Proposals for the Company s unsecured creditors It is recommended that the proposed provision for the unsecured creditors should be re assessed by the Interim Examiner on his appointment as examiner THE SUPREME COURT Appeal No 449 2013 Denham C J O Donnell J Laffoy J IN THE MATTER OF STAR ELM FRAMES LIMITED AND IN THE MATTER OF THE COMPANIES ACTS 1963 2012 Judgment of Ms Justice Laffoy delivered on 10 th December 2013 Background 1 Star Elm Frames Limited the Company was incorporated on 19 th July 2011 In September 2011 it acquired the assets and goodwill of the business of another company Star Elm Limited SEL which was being wound up from the liquidator at the price of 130 000 of which the sum of 65 000 remains due and owing to SEL in liquidation Since the acquisition was completed the Company has carried on the business acquired the manufacture and delivery of casement windows doors and patio doors from premises at Raheen Business Park Raheen County Limerick which are held by it on lease At present the Company has thirty one employees 2 During its first year of trading to mid August 2012 the Company incurred an operating loss of 329 739 which represented 8 28 of turnover In the following trading year to mid August 2013 it incurred an operating loss of 166 276 which represented 4 85 of turnover which had diminished by 14 03 in that year However expenses as a percentage of turnover had also been reduced in that year 3 On 26 th September 2013 the first date in respect of which the Court has an estimated statement of affairs the Company had a deficit of 277 638 on a going concern basis The Revenue Commissioners were the Company s largest creditor According to the Revenue Commissioners the Company has a total tax liability of 418 237 comprising 384 374 in respect of VAT for periods November December 2012 March April 2013 May June 2013 and July August 2013 and 33 863 in respect of PAYE PRSI for 2013 While there had been engagement between the Company and the Revenue Commissioners prior to October 2013 what appears to have precipitated the Company s actions which led to these proceedings was the fact that on 1 st October 2013 the Revenue Commissioners placed an attachment on the Company s bank account in consequence of which the Company was going to be unable to discharge wages which were due to be paid on 3 rd October 2013 The petition 4 On 3 rd October 2013 the Company presented a petition to the High Court seeking an order pursuant to s 2 1 of the Companies Amendment Act 1990 as amended the Act of 1990 appointing an examiner to the Company On the same day the Company applied ex parte to the High Court for the appointment of an interim examiner By order of the High Court Butler J made on 3 rd October 2013 Joseph Walsh the Interim Examiner of Hughes Blake Chartered Accountants was appointed as interim examiner until after the hearing of the petition on 4 th November 2013 There was before the Court on the hearing of the ex parte application a report dated 2 nd October 2013 of John Tobin Certified Public Accountant of J P O Donohoe Co which was presented as the report of an independent accountant for the purposes of s 3 3A and 3B of the Act of 1990 the Independent Accountant s Report 5 When the petition came on for hearing before the High Court Charleton J on 4 th November 2013 in addition to the Independent Accountant s Report there was before the Court an affidavit of the Interim Examiner which exhibited a report of the Interim Examiner covering the period from his appointment on 3 rd October 2013 to 4 th November 2013 the Interim Examiner s First Report There was also before the Court an affidavit sworn by Philip Moloney an officer of the Revenue Commissioners on 1 st November 2013 It was made clear in that affidavit that while the Revenue Commissioners were bringing certain concerns they had to the attention of the Court to assist the Court s adjudication on the petition they were neutral as to the Company s application for protection At the hearing of the petition counsel for the Revenue Commissioners maintained the guardedly neutral approach to the application to appoint an examiner The decision of the High Court on the petition 6 By order of the High Court Charleton J made on 4 th November 2013 it was ordered that the protection of the Court afforded to the Company be lifted forthwith and that the Interim Examiner be discharged as Interim Examiner of the Company On 5 th November 2013 the said order was stayed until 8 th November 2013 7 In an ex tempore judgment Charleton J set out his reasons for refusing the application First the petitioner had failed to satisfy him that the Company was in a position where it had a reasonable prospect of survival as a going concern Secondly he was not satisfied that he should exercise the discretion conferred on the Court by the Act of 1990 in favour of the Company which had collected VAT but had not remitted it to the Revenue Commissioners over a period of a year going back to November 2012 in circumstances where the Company had already defaulted on a scheme to repay insisted on by the Revenue Commissioners The Appeal 8 The Company served notice of appeal against the decision of the High Court on 6 th November 2013 Subsequently the Company applied for a stay on the order of the High Court That relief was granted and the position is that the Court protection and the appointment of the Interim Examiner have remained in place pending the determination of the appeal The sources of evidence before the Court on the hearing of the appeal 9 As has happened in the past for example in In the Matter of Gallium Limited 2009 2 ILRM 11 there was new evidence before this Court on the appeal which adopting the words of Fennelly J in his judgment in the Gallium Limited appeal had the effect of placing an entirely different complexion on matters as they had appeared before the High Court The new evidence consisted of a an affidavit of David Sage a director of the Company sworn on 6 th November 2013 b an affidavit of the Interim Examiner sworn on 8 th November 2013 which exhibited a report of the Interim Examiner covering the period from 5 th November 2013 to 7 th November 2013 the Interim Examiner s Second Report c a further affidavit of the Interim Examiner sworn on 12 th November 2013 which exhibited a further report of the Interim Examiner covering the period from 8 th November 2013 to 12 th November 2013 the Interim Examiner s Third Report to which there was appended a document entitled Proposals for a Compromise and Scheme of Arrangement between the Company and its Members and Creditors the Scheme Proposals which had been prepared by the Interim Examiner and d an affidavit sworn by the Interim Examiner on the 26 th November 2013 exhibiting a further report of the Interim Examiner for the period from 13 th November 2013 to 26 th November 2013 the Interim Examiner s Fourth Report 10 There was also before this Court a second affidavit sworn by Mr Moloney on behalf of the Revenue Commissioners on 12 th November 2013 which raised issues in relation to the viability of the Company having regard to matters asserted in the Independent Accountant s Report and in the Interim Examiner s Second Report It was suggested that clarification of those matters would assist this Court in its consideration of the viability of the Company and its consideration of the prospects of the Company s survival as a going concern On receipt by the Revenue Commissioners of the Interim Examiner s final affidavit sworn on 26 th November 2013 there was an exchange of correspondence between the Revenue solicitor and the solicitors for the Interim Examiner The Revenue solicitor s letter dated 26 th November 2013 identified certain issues arising out of the Interim Examiner s Fourth Report which required further consideration The response dated 27 th November 2013 was from the Interim Examiner to the Revenue solicitor and it included an appendix setting out an updated cash flow projection for six weeks the first being the week ending on 29 th November 2013 That correspondence was furnished to the Court on the hearing of the appeal on 27 th November 2013 Hearing of the Appeal 11 On the hearing of the appeal there were submissions from counsel for the Company counsel for

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  • 2 Next it is for completeness of relevance to note that two of the original applicants who remained parties as at the time of the High Court withdrew their appeals at the time of the oral hearing in this Court For ease of reference I will therefore refer to those of the original applicants whose case remained alive at the oral hearing as the continuing claimants I now turn to the arguments raised at the hearing on the estoppel issue 4 3 The first point noted by counsel for the continuing claimants was that the case for estoppel made in the High Court was one made on behalf of the applicants rather than one made on behalf of the Ministers which suggested that the claim rather than the defence was subject to a Henderson v Henderson type estoppel Against that background it is suggested that it is curious that the trial judge made a finding that the raising of the issue by the applicants is not in any way an abuse of process No such suggestion had apparently been made by counsel for the Ministers before the High Court 4 4 While that point may not of itself be of any relevance to this appeal it is apparent that the trial judge proceeded on the basis that the question of actual payment of the applicants in Fuller No 1 was not raised in that case An analysis of the pleadings in Fuller No 1 makes it clear that that is not the case The relief in respect of which leave to seek judicial review was granted by the High Court Quirke J on the 12th May 2003 included as has already been noted at item d II An Order of Mandamus directing the Respondents to restore the Applicants to the payroll as and from the 28 April 2003 Thus there was a very specific claim made in Fuller No 1 seeking an order in effect that the relevant applicants be paid The plea at paragraph 7 of the statement of opposition which has already been cited has to be seen in that light It follows that at least so far as the pleadings were concerned the issues which were before Carroll J in Fuller No 1 included although obviously were far from confined to a claim for payment with a denial that the applicants were entitled to payment In particular that denial was expressly stated to be based on the application of s 16 and s 16 alone Furthermore and of particular relevance to the issue which has now arisen s 16 was stated to be the justification not only for the initial removal from the payroll and thus the initial refusal to pay the relevant applicants but also in respect of any continued refusal to pay The statement of opposition was filed on the 20th May 2003 By that stage all of the applicants in those proceedings were on full strike If therefore the basis for not paying those officials after they had gone on full strike was because they were not entitled to be paid simply because they were on strike then it is surprising that no mention of that justification is to be found in the statement of opposition even as a fallback position 4 5 On the basis of the case which the Ministers now seek to make it would for consistency have been appropriate for the Ministers to have pleaded in late May 2003 that at least in the alternative and whatever about the effect of s 16 the applicants were no longer entitled to continue to be paid by virtue of their being on strike No such plea is to be found 4 6 What then are the consequences of the way in which the Ministers defended Fuller No 1 First it is said on behalf of the Ministers in this appeal that Fuller No 1 turned out to be a very narrow case wholly concerned with the proper statutory interpretation of s 16 In that context it is said that whatever about the claim for payment being included in the relief sought in the statement of grounds no such claim was pressed in the sense that neither the judgment of Carroll J in the High Court or McGuinness J in this Court deals with the order of mandamus It can I think safely be inferred that had such an order been pressed at either hearing the court would have at least dealt with it in some fashion There is on the affidavits a difference of recollection which it is impossible to resolve at this remove as to what might have been said in this Court about the payment issue 4 7 In his replying oral submissions counsel for the continuing claimants agreed that the issue in Fuller No 1 was narrow but suggested that the reason why it was so narrow was precisely because of the way in which the Ministers chose to set out their opposition It seems to me that counsel was correct in so characterising the situation It remains the case that as the case was pleaded the applicants in Fuller No 1 asserted an entitlement to be paid The only basis put forward for resisting that claim was to place reliance on s 16 It was in those circumstances a matter for the Ministers to raise any other basis or justification for not continuing to pay the applicants in that case The issue was narrow precisely because the Ministers chose not to widen it The failure to press for an order of mandamus must again be seen in that context Given that the only basis put forward by the Ministers for suggesting that they did not have a continuing obligation to pay was s 16 it was in my view not unreasonable for the applicants in Fuller No 1 to consider that a victory on the s 16 point would necessarily carry with it an entitlement to be paid It is true that the court was not asked to make the mandamus order It is true that the court did not therefore expressly find that the applicants were entitled to be paid But it is also true that the only basis put forward in the pleadings for suggesting that the applicants were not entitled to continue to be paid was rejected 4 8 In passing I should note that while not all of those who are applicants in these proceedings were parties to Fuller No 1 no argument was in my view quite properly advanced on behalf of the Ministers to suggest that any estoppel which contrary to his submissions might arise could only apply in favour of those who were applicants in Fuller No 1 The fact is that Fuller No 1 arose out of the same dispute between in substance the same parties and it would have been wholly inappropriate to seek to distinguish between those who happened to be applicants in Fuller No 1 and those who were not 4 9 It is also worthy of some note although far from decisive that the Ministers in Fuller No 1 sought to rely on jurisprudence of the English courts which suggested a no work no pay principle such that independent of s 16 the Ministers might have been entitled to remove the applicants from the payroll because of the undoubted fact that they declined to work fully in accordance with their contractual obligations However this Court made clear that it did not consider it appropriate to permit the Ministers to raise in Fuller No 1 that point precisely because no basis other than s 16 had been put forward to justify the removal of the applicants from the payroll It was acknowledged by counsel for the continuing claimants in this Court on this hearing that the no work no pay point sought to be raised on that earlier occasion on behalf of the Ministers was a slightly different one than the one now sought to be relied on The point then sought to be made was that the Ministers were entitled to remove the relevant officials from the payroll because they were engaged in reduced working as part of the limited and rolling industrial action to which reference has already been made Of course what is now sought to be relied on is the same principle but as a justification for a continued removal from the payroll subsequent to the complete refusal to work occasioned by the calling of an all out strike However it seems to me that the underlying principle is much the same The basis which the Ministers put forward as a justification for non payment either by the original removal from the payroll or in respect of any continuing non payment was s 16 and s 16 alone No other basis was put forward 4 10 Insofar as it might be said that the basis for not paying the continuing claimants changed when they went out on all out strike no mention of that is made in the statement of opposition If the Court were only concerned with what was said in correspondence at the respective times when the relevant officials were initially removed from the payroll which was of course before they were on all out strike then there might be merit in that point although it would also be necessary to consider whether there was any obligation on the Ministers to specify that there had been a change in the basis on which the officials concerned were not to be paid However by the time the case in Fuller No 1 came to be pleaded the situation had already changed so that if the Ministers argument be correct the reason for not paying the applicants in Fuller No 1 on a continuing basis was no longer s 16 but rather their all out strike For the reasons already analysed no mention is made of such a basis in the pleadings 4 11 It seems to me to follow therefore that the reason why Fuller No 1 was debated on a narrow basis was because of the position adopted by the Ministers and not the position adopted by the applicants The applicants sought continuing payment The Ministers only basis for justifying not continuing to pay was s 16 On that basis and because of the position adopted by the Ministers the case was argued on a narrow basis and it was not unreasonable for the applicants in Fuller No 1 not to press for an order of mandamus when it was clear that only one justification for non payment including continuing non payment was put forward and where their central attack was on the legality of that basis 5 The Consequences 5 1 It is of course clear not least from A A v Medical Council that the Court retains a discretion in cases such as this where it is asserted that a party is no longer entitled to put forward a claim because of the position adopted by that party in previous connected proceedings It does seem to me that the underlying rationale for the rule in Henderson v Henderson applies equally to a matter of defence as it does to a matter of claim The rationale is that a party should ordinarily bring forward its full case and must run the risk that if it does not do so it will be precluded in some subsequent similar proceedings from making a case which it should but did not put forward on an earlier occasion That rationale applies with equal force to the obligation on a defendant or respondent to bring forward its full case It follows that the Court has a discretion to prevent a defendant from raising an issue which could and should have been advanced in previous connected proceedings Like all discretions the Court must consider all relevant factors and consider in accordance with any applicable jurisprudence where the justice of the case lies 5 2 For the reasons already analysed I am satisfied that the trial judge was incorrect in his analysis of the circumstances which led to the question of payment not being the subject of a definitive ruling by either the High Court or this Court in Fuller No 1 It is clear that the exercise by the trial judge of the discretion which he undoubtedly enjoyed as to whether to permit the Ministers to put forward a different defence in these proceedings to that put forward in Fuller No 1 was significantly coloured by the view which the trial judge took of those circumstances It follows that this is not one of those cases where this Court is required in accordance with the relevant jurisprudence to afford very significant weight to the manner in which the trial judge exercised his discretion I am therefore satisfied that in those circumstances it is appropriate for this Court to take a different view as to whether the Ministers should be allowed rely on the defence in question 5 3 In my view having permitted Fuller No 1 to proceed on a narrow basis by failing to put forward any justification for the continuing removal of the applicants from the payroll other than s 16 it would now be unjust to deprive the continuing claimants of the fruits of their victory in Fuller No 1 by allowing the Ministers to put forward a different and substantially inconsistent basis of justification for continued non payment 5 4 One further observation seems to me to be appropriate It might on a superficial view be taken that this Court is deciding this appeal on narrow and technical pleading grounds It is important to emphasise that such is not the case The modern view on pleadings is that the Court should be anxious to ensure that the true issues between the parties are determined To that end a court should lean in favour of any application to amend pleadings provided that no unfairness or injustice will result However it remains the case that pleadings are important for they define the parameters within which any case is to be decided Where it is desired either by a claimant whether plaintiff petitioner applicant or the like or by a defendant or respondent to expand the scope of a hearing beyond that defined by the pleadings then it is of the utmost importance that an appropriate application to amend the pleadings is made and dealt with by the court That is as true if not more true in the sphere of judicial review where the legality of otherwise valid measures is at stake Such cases should be clear as to their scope both of claim and defence 5 5 There have regrettably been far too many cases which have come before this Court in the judicial review sphere in recent years where the case had evolved both before the High Court and on appeal before this Court but in circumstances where the parties had not sought to amend the pleadings to reflect any such change Such is a highly unsatisfactory situation No such problems of course arose in this case However those observations serve to emphasise the importance of ensuring that the scope of the issues before the Court in judicial review proceedings are clear from the statement of grounds and statement of opposition for that scope can have effects beyond the relevant proceedings On the facts of this case it was clear that the issues before the court in Fuller No 1 included the question of continuing payment with opposition to payment being grounded solely on s 16 5 6 The other issues which were debated on this appeal raise important questions concerning the circumstances in which employers generally or those in the public sector are independent of statute entitled to refuse to pay or fully pay persons engaged in limited or full industrial action Likewise the issues involve important questions from the perspective of employees as to whether they can be obliged on pain of not being paid at all to work in circumstances where employers either have threatened or have actually refused to pay or fully pay them It seems to me that having concluded that the Ministers were not entitled to raise those issues in these proceedings for the reasons already analysed it would be inappropriate to enter into a detailed consideration of those important questions in circumstances where any conclusions reached would clearly not affect the result of the case and thus be obiter dicta On that basis I would propose dealing with this case solely on the basis of the estoppel or abuse of process argument raised on behalf of the continuing claimants which for the reasons already set out I am satisfied permits those claimants to succeed I now turn to the order which I propose 6 Conclusions 6 1 The order clearly can only apply to the continuing claimants However insofar as those claimants are concerned it seems to me that it is appropriate to allow the appeal on the basis of the estoppel or abuse of process argument put forward to set aside the judgment and order of the High Court and to grant a declaration that each continuing claimant is entitled to be paid salary as if they had continued to work between the respective dates on which they were removed from the payroll and the date on which they returned to work after the settlement of the underlying industrial dispute In addition there should be a declaration in an appropriate form to guarantee that no pension rights would be lost by reference to the period when each continuing claimant was not on the payroll 6 2 As I am of the view that these proceedings can be disposed of on the basis of the estoppel or abuse of process argument put forward on behalf of the continuing claimants it does not seem to me to be appropriate to deal with the other important issues raised 6 3 For the avoidance of doubt I would propose that the parties be asked to agree a specific form of order specifying the continuing claimants and identifying declarations to be made which meet the substance of this judgment THE SUPREME COURT Appeal No 132 2008 Clarke J MacMenamin J Dunne J Between MARIE FULLER ANNE MARIE COLLINS NUALA O MAHONY CARMEL KELLEHER BRENDAR FARR MARGARET COLLINS GRETTA COLEMAN GERALDINE HURLEY KAREN MURPHY MAIREAD O CONNELL GRETE HEGARTY BRIAN O REGAN HUGH O REILLY DEIRDRE COOMEY BERNIE BURKE MARTIN BRENNAN MARGARET CAHILL SHARON CANNON O REILLY NOIRIN CARR TERESA COMMONS TERESA COSGROVE JAMES CUNNINGHAM MICHAEL CORCORAN MARIE CRESHAM MAUREEN DEANE CHARLOTTE DEVINE CATRIONA DOYLE GERALDINE FARRAGHER ANGELA DEMPSEY GERALDINE FORKAN KEVIN FEENEY BRIDGET A GALLAGHER FRANCES GALLAGHER MARTINA GALLAGHER BRID GAYNARD KITTY GREENE NOREEN GROARKE MICHAEL HALLINAN BREDA HEGARTY MARY HENEGHAN MARGARET HENRY MAURA HENEGHAN TERESA HYLAND UNA HENRY GERALDINE HUGHES SHEILA JOYCE MARGARET KEANE MARGARET KEARNEY PATRICK KILCOYNE LYNDA LYONS MARIA LARKIN VALERIE LAVELLE ANN LYNOTT CARMEL GOLDEN JOHN LOFTUS MARY MOORE KATHLEEN MADDEN ALICE VESEY McCARTHY SIOBHAN McDONNELL GILL MARY P McDONNELL KARA McNULTY KATHLEEN MINOGUE PATRICIA MORAN HELEN MURPHY NUALA MURPHY JOSEPHINE NAUGHTON KEANE BRID Ni CHINNÉIDE ÁINE Ui LOIDEAN ÁINE Ni EANACHÁIN BERNADETTE O MALLEY CATHERINE O MALLEY JAMES O MALLEY JOSEPH O REILLY PATRICIA O MALLEY HONORAH RONAYNE CATHERINE B SWEENEY IRENE RYDER ANNE VAHEY WALSH MARY WALSH MAUREEN WALSH MAURA WALSHE JAMES WOODLOCK LORRAINE BOYLE PATRICIA FITZPATRICK HILDA FLANAGAN CARMEL HALL MARY HERATY MARTINA JORDAN CHRISTINA KEARNS MARTINA KELLY LORETTO MARLEY MARY C McDONNELL ELEANOR McHUGH ANNE RUANE BRIDIE SHALLY BERNADETTE WALSH MAIREAD WHELAN MARY WHITE KAY DOLLY SUZANNE BRODY BREDA QUIRKE NIAMH SPILLANE MARY McAULIFFE TERESA CLEARY PATRICIA CREGAN CARMEL GALVIN MARY O CONNOR ANNETTE COLLINS DOLORES QUINN NORA T O BRIEN CLAIRE RYAN DENISE McINERNEY ELEANOR BIRMINGHAM GERALDINE O BRIEN ANNE MARIE SHEEHAN DOLORES O SULLIVAN ADELE WRIGHT BRENDA MOLONEY SIOBHAN CRAIG MARY BREEN PATRICK POWER JUNE DANAGHER MARTINA TOBIN BREDA MURPHY CLAIRE CONSIDINE OLIVE O CONNOR MARGARET MULVIHILL BREID GUINANE DOLORES BURKE EILEEN CARROLL EILEEN CASEY MARIE DALTON MARY DILLANE SIOBHANE DINEEN VERONICA DONEGAN PHILIP EGAN ELIZABETH M EGAN MARGARET GRIFF FITZGERALD MARGARET FITZGERALD ANNE FOLEY BREID GRIFFIN DAVID GRIFFIN NORA HALLISSEY EILEEN HANLEY MARIAN HERLIHY MARIAN HUSSEY ANNE KAVANAGH KATHLEEN T KAVANAGH McELLIGOTT CATHERINE T KELLIHER EILEEN KENNEDY CARMEL KING KATE KISSANE ANN LEEN NORA McCARTHY SIMON McCARTHY EILEEN McQUINN DEIRDRE MOORE MARY MURPHY SINEAD NOLAN SHEILA O CONNELL NOREEN O CONNOR MARY ENRIGHT O CONNOR SHEILA O DONOGHUE DEBORAH A O CONNOR SCANNELL MARY O MAHONY MARIAN O REILLY ANN O SULLIVAN DOWNEY MARY O SULLIVAN MARION ROSS ANNE REEN SHEILA REYNOLDS CARMEL SHEEHY MARION WALSHE SUSAN CONROY ANNE EGAN FORDE ANNE CONNOLLY ELIZABETH HAYES THERESA HURLEY MARY EVANS PATRICIA LAWTON SILE COLLINS O NEILL ANNE WHELAN PATRICIA BURKE GERALDINE MURPHY DOLORES DOYLE CATHERINA FARRELL MARYSE JENNINGS RAY BURKE EAMON DOYLE MARY SMITH IMELDA KEANE BREEDA McDONAGH VALERIE FALLON BERNIE HICKEY CARMEL DONOGHUE CIARA GLYNN ANNE MILLER ROSALEEN CONNELLY PHILO MADDEN PAT CONNELLY ANN FAHERTY CATHERINE RUANE BRIDIE THORNTON MARY MAUGHAN CARMEL FEENEY MARGARET FOY MAUREEN MOONEY TERESA HANNON GERALDINE FLANAGAN BRID DONNELLAN PATRICIA DUFF ANNE FEENEY CATHERINE LOFTUS HELEN LUNDY MARIA BARRETT CIARA FAHY SEAN MURPHY MAURA CURRAN JANETTE TREACY SHARON KEELY CATHERINE FINNEGAN PAULINE COLLINS KAREN DONOGHUE OLIVE RIDDELL BREEGE BURKE VIOLET CALLAGHAN MARTIN BIGGINS ANNE HESSION CATHERINE RYAN MARGARET RAFTERY PATRICIA GILLIGAN DEIRBHLE CAREY GERALDINE CONROY MARY B KEADY MARY TREACY ANNE COSTELLO CLAIRE CLEARY ETHNA MAHONY DOLORES MURPHY RITA HURLEY GERALDINE CAHIR ROSARIO MELLET GERALDINE McHUGH SABRINA BYRNE VALERIE FULLARD DEIRDRE McGUIGAN MAURA McNICHOLAS MARY HENNESSY UNA CAFFERKEY SINEAD GORMAN NOREEN O DRISCOLL ANN McNAMARA NORA BUTLER MARY KEANE CATHERINE GORMALLY CLAIRE O REILLY JULIE COLLINS MARY SOMERVILLE PATRICIA SHEEHAN BERNADETTE DUNNE APPLICANTS APPELLANTS AND THE MINISTER FOR AGRICULTURE FOOD AND FORESTRY AND THE MINISTER FOR FINANCE RESPONDENTS RESPONDENTS JUDGMENT of Mr Justice Clarke delivered the 27th November 2013 1 Introduction 1 1 Industrial relations disputes have their own dynamic often operating outside of legally binding arrangements However sometimes aspects of those disputes involve complex legal questions The industrial relations dispute out of which these proceedings arose came to a head in 2003 The dispute was the subject of previous proceedings involving some but not all of those who bring these proceedings Those proceedings Fuller No 1 commenced in 2003 and were the subject of a judgment of Carroll J in the High Court Fuller Ors v The Minister for Agriculture and Food and The Minister for Finance 2003 IEHC 27 and of this Court Fuller Ors v The Minister for Agriculture and Food and The Minister for Finance 2005 1 I R 529 While it will be necessary to analyse aspects of the course of those proceedings in some greater detail at its simplest the case made in those proceedings was that the purported removal from the payroll of the Department of Agriculture of a number of the applicants was unlawful The applicants succeeded in those proceedings both in the High Court and on appeal in this Court 1 2 After judgment had been given on the appeal the applicants trade union the CPSU wrote to the Department asserting an entitlement deriving from the decision of the courts in Fuller No 1 to be entitled to pay and pension qualification in relation to a period when to use a neutral term they were out of work as a result of the relevant industrial dispute The claim made also related to other officials who while they were not applicants in Fuller No 1 were involved in the same industrial dispute 1 3 The judgments of Carroll J in the High Court and McGuinness J speaking for this Court in Fuller No 1 give a comprehensive account of the relevant facts and it is therefore unnecessary to go into those facts in great detail at this stage For present purposes it is sufficient to note that in taking certain members of CPSU off the payroll the respondents the Ministers had acted in purported reliance on s 16 of the Civil Service Regulation Act 1956 The backdrop to that stance was the fact that members of the CPSU took a form of limited rolling industrial action in furtherance of a trade dispute concerning terms and conditions The action involved a refusal to carry out certain types of work at certain times Warnings both oral and written were given that those involved would be taken off the payroll under s 16 unless full work was resumed The officials concerned declined to terminate their limited industrial action and they were removed from the payroll This happened on two different dates for two different groups of officials Immediately thereafter an all out strike was called and separately the legal proceedings which became Fuller No 1 were commenced The time at which officials went on all out strike also differed by reference to the different times when relevant officials were removed from the payroll 1 4 In simple terms the decision of both Carroll J and of this Court in Fuller No 1 was that the Ministers had acted unlawfully in purporting to place reliance on s 16 in order to remove the officials concerned from the payroll In substance it was held that s 16 was concerned with disciplinary matters and could not be utilised in relation to persons who were refusing to do certain aspects of their work as part of a general industrial relations type dispute 1 5 In any event as a result of the decisions in Fuller No 1 it was asserted that the relevant officials were entitled to be paid and to be credited for pension purposes for the period which elapsed between the officials concerned being taken off the payroll and their return to full work as a result of a settlement of the underlying industrial relations dispute While there was no initial substantive response to the correspondence addressed to the Ministers on behalf of the relevant officials by CPSU at the hearing in the High Court in these proceedings the Ministers asserted that the relevant officials were not entitled to be paid because they had it was said gone on all out strike immediately after they were removed from the payroll On that basis it was asserted that the law does not require striking workers to be paid 1 6 As a result of the refusal of the Ministers to make the payments concerned and to agree that pension qualification and calculation would be conducted on the basis of the workers concerned having a credit for the relevant period these proceedings were commenced and ultimately came on for hearing before Gilligan J in the High Court The applicants in these proceedings included those who were the applicants in Fuller No 1 but also included many others involved in the dispute It will be necessary for completeness to deal briefly with the precise position of each group of applicants in due course However for present purposes it is sufficient to note that the claims made in these proceedings failed in the High Court and it is against that decision that this appeal is brought 1 7 A range of issues came to be determined by Gilligan J The one which most logically arises first for consideration derives from a contention put forward on behalf of the relevant workers that the Ministers are now estopped or otherwise prevented from putting forward an argument of the type just addressed by virtue of the manner in which the Ministers defended the earlier proceedings In addition there are both factual and legal disputes between the parties as to the circumstances if any when workers may be entitled to be paid in circumstances such as arise in these proceedings However clearly those potentially difficult issues do not arise in the event that the Ministers are prevented from raising the relevant substantive arguments in the first place In those circumstances it is appropriate to turn first to consideration of that issue 2 The Estoppel Issue 2 1 The underlying factual basis put forward for the proposition that the Ministers cannot now rely on the strike to justify non payment stems from the way in which Fuller No 1 was pleaded Amongst the reliefs claimed on behalf of the applicants in Fuller No 1 was at the relief sought at d II of the statement of grounds An Order of Mandamus directing the Respondents to restore the Applicants to the payroll as and from 28 April 2003 In that context it should be noted that the 28th April 2003 was the date on which those officials who were applicants in Fuller No 1 had been removed from the payroll 2 2 In their statement of opposition the Ministers specified at paragraph 7 that it was admitted That the Applicants have been and continue to be deprived of their remuneration however it is pleaded that in so depriving the Applicants the Respondents have acted lawfully and in accordance with the powers conferred upon them by section 16 of the Civil Services Regulation Act 1956 2 3 In the context of that sequence of pleading the undisputed factual backdrop is of some relevance The applicants in Fuller No 1 were involved in part of the rolling industrial action to which reference has been made They were served with notices to the effect that unless they returned to full work they would be removed from the payroll with effect from the 28th April As was emphasised by counsel for the Ministers before this Court there was already experience on both sides as to how matters were likely to develop for a larger number of co officials had already been removed from the payroll earlier in April in identical circumstances It was pointed out that the relevant communications on behalf of the Ministers on both occasions made clear that the removal from the payroll was to last only as long as any relevant officials were actively engaged in the rolling industrial action in the sense of not actually fully working on any particular day or days It was in the nature of that rolling action that different officials declined to do certain duties for a number of specified days and then returned to full working Thus it is said on behalf of the Ministers that it was clear at all times that the only removal from the payroll which would occur would be in respect of those days on which any relevant official declined to carry out their full duties so that the official concerned would be restored to pay in respect of any day or days on which they did in fact work fully 2 4 In simple terms the Ministers case is therefore that any relevant official would have been fully paid in respect of any days on which they returned to full work On that basis it is said that the only reason why the officials concerned were not paid for the period in dispute was because they were on full strike However one characterises matters it is clear that all of the officials who were applicants in Fuller No 1 were on full strike before leave was obtained to seek judicial review and well before the statement of opposition on behalf of the Ministers was filed For completeness one minor twist in the facts should be noted As pointed out the sequence of events was that on different dates groups of officials were removed from the payroll in purported reliance on s 16 as a result of their failure to do full work Within a day an all out strike was called No pay was at the relevant time given to any official in respect of a time after they were removed from the payroll on the basis of the Ministers contention that they were not entitled to such pay However in the course of the proceedings before the High Court it was accepted on behalf of the Ministers as it would have to have been in order to maintain a position consistent with the case being made by the Ministers that any official who subsequent to being removed from the payroll did attend for work even on the basis of doing limited duties was entitled to be paid That concession stemmed from the acceptance by the Ministers that at a minimum the judgments in Fuller No 1 rendered non payment of officials in respect of periods when they were attending for some work unlawful 2 5 It is in the context of those facts that the estoppel issue arises It is argued on behalf of the officials that the only justification put forward on behalf of the Ministers in their statement of opposition not only for their initial deprivation of remuneration but also for any continued deprivation of remuneration was s 16 On that basis it is said that if as is now argued to be the case the true reason for depriving any relevant official of remuneration after the all out strike commenced and thus at the time when the judicial review proceedings were launched and in particular when the Ministers put in their statement of opposition was a separate reason being that the workers were now on all out strike then same could and should have been pleaded in the statement of opposition 2 6 On that basis it is said that it is now too late for the Ministers to seek to make a different case to justify the failure to continue to remunerate the relevant officials Against that background it is next necessary to turn to the way in which the trial judge dealt with this aspect of the case 3 The Judgment of the Trial Judge 3 1 Gilligan J noted at page 8 of his judgment that the case was made that the Ministers were now estopped from seeking to justify the decision to remove those applicants from the payroll on the basis of a justification other than s 16 The trial judge then went on to consider the relevant authorities to which he had been referred being Thoday v Thoday 1964 1 All E R 341 at p 352 Carl Zeiss Stiftung v Rayner and Keeler Limited and Ors No 2 1966 2 All E R 536 at p 565 and in particular the judgment of Hardiman J in this Court in A A v Medical Council 2003 4 I R 302 and the consideration therein of the rule in Henderson v Henderson 1843 3 Hare 100 and the discretionary approach to its application noted by Lord Bingham in Johnson v Gore Wood Co 2002 2 A C 1 3 2 Thereafter at page 11 of his judgment Gilligan J went on to say the following I see no reason why the issue as to the payment of the applicants wages and clarification as regards the position pertaining to their pension entitlements could not have been raised in the earlier judicial review proceedings Counsel for the respondent does not raise any issue in these proceedings as regards the applicants entitlement to maintain these issues before this Court In all the circumstances in the exercise of my discretion I take the view that what is at issue in this case is a separate and distinct point which was not at issue or argued in the previous judicial review proceedings of Fuller No 1 I do not consider in all the circumstances that the raising of the issue by the applicants is in any way an abuse of process Equally I can see no reason why the respondent should not be allowed to make out an argument that the applicants have no right to be paid their wages or a right to their pension entitlements notwithstanding that they were unlawfully removed from the payroll by reason of the fact that in the circumstances which

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  • sheet However to regard them as having no value when they appear on the accounts at 27 8m would be unrealistic It follows that even in the doomsday scenario of a winding up on the basis of the current accounts Imagine would have a sum well in excess of 10 million by way of surplus to meet any costs that might be awarded against it Even if one were to factor in further possible losses between the end of December 2011 and a likely time of trial perhaps early 2014 together with Imagine s own costs of the trial it still seems highly likely that there would be more than enough funds available to meet an award of costs even of the order of 4 5 million 6 10 On the basis of that analysis I am satisfied that the trial judge was correct to conclude that it had not been established that there is reason to believe that Imagine will be unable to pay costs if it loses its case 6 11 The content of Note 1 is undoubtedly a factor which has to be taken into account and to which significant weight would necessarily have to be attached However the sequence of events leading to an understanding by Imagine of the true value of the broadband spectrum also needs to be noted 6 12 In a presentation to the Imagine Group in May 2012 which preceded but only by a short period the signing off of the 2011 Accounts AIB put an indicative value of between 55m and 108m on 120MHz of spectrum which Imagine then held Imagine now holds additional spectrum licences This valuation was reinforced by the October 2012 valuation provided by Dr Jeremy of between 50m and 120m The report of Dr Jeremy also notes indicative minimum auction prices for further bandwidth which was to be sold by the Commission for Communications Regulation These estimates 2m per MHz under 1 GHz and 1m per MHz for 1800MHz were said to support the valuation estimate provided by Dr Jeremy The results of this spectrum auction were referred to in the second replying affidavit of Sean Bolger the Chief Executive of the Imagine Group dated the 7th December 2012 At para 60 of that affidavit he states Following the recent LTE Spectrum Auction concluded by ComReg and on a conservative basis the valuation of the spectrum licence assets held by the Group are at the very least at the higher end of the valuation provided by Mr Jeremy as contained in the report of Mr Murphy exhibited to my first affidavit herein This is in excess of 100 Million The disposal of even part of these licences would cover any award for costs 6 13 While it might be said that the indicative values given by AIB ought to have led the directors to consider when signing off on the accounts whether Note 1 in its final form should be included on the basis that it is very hard to see how there could be any risk of any liabilities not being discharged even if the proceedings were unsuccessful on the basis of the broadband spectrum having a value of at least 50 million nonetheless I am satisfied that an appropriate analysis of the true position of the Imagine group leads to the conclusion that it does have assets which are of such a value as to be more than sufficient to allow for the payment of all likely liabilities together with a sum of 4 5 million costs even in the eventuality of a winding up To hold otherwise would require the rejection of the only expert view tendered in evidence as to the value of the broadband spectrum itself 6 14 Finally I should touch on the argument made on behalf of Motorola which really arose on the question of whether special circumstances had been made out which suggested that if it were really true that the spectrum had such value Imagine should have no difficulty in raising funds whether by borrowing or raising additional capital to meet any order for security for costs and that the justice of the case would therefore be met by requiring security to be put up Whatever might be the merits of such an argument if there was a real dispute between experts as to the value of an important asset of a company such that on one view the company would not be able to meet a costs order but on the view of the other expert it would such an analysis could in my view play no part in a case such as this where there is no contest on expert evidence 6 15 Because the issue was raised I will turn to the question of the potential role of cross examination in an application such as this 7 The role of cross examination 7 1 As noted earlier the role of cross examination in an interlocutory application of this nature was also the subject of dispute Reliance was placed on comments by Hardiman J in Boliden Tara Mines v Cosgrove 2010 IESC 62 and in my judgment in Re McInerney Homes Limited No 2 2011 IEHC 4 to the effect that affidavit evidence if the deponent is not subject to cross examination should not be rejected unless there are inherent obvious flaws in that affidavit evidence Boliden concerned the adequacy of evidence tendered in favour of a claim for rectification of a trust deed in respect of a pension fund However the evidence in that case in the High Court was all tendered on affidavit with no cross examination On this Hardiman J stated It cannot be too strongly emphasised that where evidence is presented on affidavit a party who wishes to contradict such evidence must serve a notice of intention to cross examine In a case tried on affidavit it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to In a case where there is no contradictory evidence an attack on the evidence which is made before the court must include cross examination unless the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case even taking the evidence it has produced at its height 7 2 In Re McInerney Homes Limited No 2 the court was faced with a situation where there was conflicting expert evidence on affidavit as to the prejudice caused by a proposed scheme of arrangement in an examinership proceeding At para 5 15 I observed As Hardiman J pointed out in Boliden it is of course open to a party to seek to argue that even taking its opponent s evidence at its high point same does not establish a material element of the matters needed to be established in order that the remedy sought be given by the court While Hardiman J was dealing with a case in which there was no contradictory evidence it seems to me that similar considerations apply where there is contradictory evidence but where the evidence on both sides is given on affidavit without cross examination It is of course open to a party in such circumstances to say that the court can rely on uncontradicted aspects of the evidence in reaching its conclusions Indeed to a material extent that is what counsel for both the examiner and McInerney sought to do However it is impossible for the court to resolve material questions when there is a conflict of evidence on matters of significance to an answer to those questions As a result I was left with no option other than to hold that there was sufficient credible evidence before the court for the purposes of the application 5 25 For the reasons which I have sought to analyse I am therefore satisfied that under each of the four contested headings the position is broadly the same There is a credible basis for the Banking Syndicate s position although it may turn out to be wrong It may turn out to be wrong for any number of reasons A court can of course analyse the competing opinions of experts given on affidavit for the purposes of assessing whether it is possible to reach conclusions on the basis of obvious flaws or gaps in the evidence tendered on one side or the other Even taking evidence tendered at its height same may disclose flaws or gaps which entitle the court to disregard it in part or to treat conclusions asserted as not necessarily following from the substance of the evidence The evidence of the Banking Syndicate on those issues did not seem to me to disclose obvious flaws or gaps of that type such as would allow the court to treat the conclusions reached from same as unsafe in the absence of cross examination In those circumstances the only possible conclusion is that there is a credible basis for the Banking Syndicate s position 7 3 A number of points should be made First the cases relied on were all cases where the court was required to make a final order and where therefore the substantive rights and obligations of all interested parties were to be finally determined Insofar as the making of a final order requires a court to take a view on the facts and insofar as material facts may be the subject of conflicting evidence placed before the court on affidavit and where the contested facts have a bearing on the order which the court will have to make then the comments made in those cases clearly apply 7 4 However there are sound reasons of principle and policy as to why save in exceptional circumstances courts should not contemplate cross examination in interlocutory matters It is important in that context to note that the wording of s 390 which has already been analysed in some detail is designed to meet a situation which is in any event at least partly hypothetical and subject to estimate While not ruling out the possibility that in an exceptional case some level of limited cross examination might be necessary nonetheless it seems to me to be important to emphasise that ordinarily a court hearing an application under s 390 should simply do the best it can on the basis of all of the affidavit evidence which the parties choose to put before it The court is not making a final decision determining rights and obligations Rather the court is making an admittedly important interlocutory order which while it of course may have an effect on the run of the proceedings including in some cases perhaps stifling the proceedings nonetheless is just that an interlocutory order A court should in those circumstances in my view be very slow to entertain an application for cross examination Rather the court should take into account all of the evidence and reach a conclusion as to whether it can still truly be said in the light of all that evidence that there is good reason to believe that the company will be unable to pay costs 8 The 2012 Accounts 8 1 As already noted the Court in slightly unusual circumstances had placed before it on behalf of Imagine its 2012 accounts together with submissions from both parties in writing as to the effect which those accounts should have on the Court s assessment 8 2 Imagine submitted that the 2012 accounts evidenced a significantly improved financial position while Motorola drew attention to a trading loss of the order of 8 million and the absence of a Directors Note or Auditors Emphasis of Matter similar to those which appeared in the previous years accounts and which have been the subject of significant analysis earlier in the course of this judgment 8 3 In response to Motorola s assertion that the accounts revealed a trading loss of the order of 8 million Imagine drew attention to the fact that much of that loss was attributable to non cash items Imagine in its submissions made significant reference to EBITDA Earnings Before Interest Taxes Depreciation and Amortisation which is of course a frequently used measure of the underlying performance of a business The calculation of EBITDA as its name implies excludes deductions for interest tax depreciation and amortisation It is perhaps worthy to note again the point made earlier in this judgment that expert evidence tendered on the basis of accountancy standards and or frequently used accountancy calculations while often useful sometimes seeks to address a question other than the one with which the Court is concerned The issue with which the Court is concerned in this case is a simple practical one It is concerned with the likely ability or inability of Imagine to meet a hypothetical cost order in the future in the event that it loses these proceedings In the context of EBITDA it is important to note that interest is a cash liability and is therefore potentially relevant to the ability of a company to meet such a cost order If the company will have to pay interest on its debts between now and the hearing then that will reduce the funds available to it to meet any cost order I do not doubt the potential usefulness of EBITDA as an effective measure of operational profitability in reaching certain business assessments as to the underlying viability of the undertaking of a company The exclusion of interest however is of little assistance in the task with which this Court is faced The exclusion of depreciation and amortisation however needs to be separately considered 8 4 Depreciation is of course a non cash cost in respect of tangible assets Amortisation is a corresponding concept for intangible property Whether depreciation or amortisation is relevant in considering whether a company is likely to be able to meet a claim in costs in the future is dependent on all the circumstances of the case but most particularly the extent to which any assessment of the company s current or likely future status is materially dependent on the availability of the value of the relevant assets sought to be subject to depreciation or amortisation If it is said that the reason why a company might at the moment be able to meet an order for costs is because of the value of assets subject to depreciation or amortisation then any future estimate of the position of that company may well have to pay some attention to the likely rate of depreciation or amortisation For the reasons already analysed that may depend on whether it is appropriate to assess the company on a going concern basis when standard accountancy deductions might apply or on a break up basis when it would be more appropriate to attempt to assess the likely value which could be achieved for the relevant assets on sale and any reduction that might occur in that value 8 5 However on the facts of this case for the reasons already analysed in respect of the 2011 accounts I had for the purposes of argument and on the basis of giving all due weight to the argument made by Motorola in that regard heavily discounted the value of all assets other than the broadband spectrum On the facts of this case and having regard to that analysis losses attributable to depreciation or amortisation on these assets are not material to the question which this Court has to answer 8 6 For the purposes of assessing what additional information is available from the 2012 accounts it is necessary therefore in analysing the performance of Imagine for the purposes of assessing its likely ability to be in a position to pay costs should it lose to have regard to interest but not to any material extent to depreciation or amortisation Thus the emphasis by Motorola on losses which include those factors is as equally invalid as the emphasis by Imagine on EBITDA which fails to reflect interest charges It does however seem from an analysis of the accounts that a significant proportion of the trading losses to which Motorola draws attention were in fact of the non cash variety Having largely disregarded the assets to which those losses are attributable in the calculation conducted earlier in the course of this judgment it seems to me that those losses do not in any material way affect the overall assessment 8 7 Insofar as Note 1 and the Emphasis of Matter no longer appear in the 2012 accounts it seems to me that in the absence of any explanation as to how they came to be there in 2011 and not there in 2012 little weight can be attributed to their removal Overall it is the case however that the 2012 accounts do seem to reflect some continuing losses which are not attributable to non cash items 8 8 However there is in my view nothing in those new accounts which lead to any different conclusion being reached than that which would have been reached on the basis of the accounts which were before the Court in the course of the oral argument As noted at paragraph 6 9 above the analysis which I there conducted made allowance for some potential future losses of the company between the date of the 2011 accounts and the likely conclusion of the proceedings That analysis therefore included provision for some future losses In the context of that analysis losses obviously refer almost exclusively to cash losses given the low weight attributed to assets other than the broadband spectrum There is nothing therefore in the 2012 accounts which alters the overall picture to any material extent 9 Conclusions 9 1 For those reasons I am satisfied that the trial judge was correct to hold that Motorola had failed to establish that there was good reason to believe that Imagine would be unable to pay costs in the event of it losing 9 2 It follows that it is unnecessary to consider whether there would have been special circumstances such as would have justified a refusal to order security 9 3 I would therefore dismiss the appeal and affirm the order of the trial judge THE SUPREME COURT Appeal No 63 2013 McKechnie J Clarke J MacMenamin J Between IBB Internet Services Limited Irish Broadband Internet Services Limited both trading as Imagine Networks and Imagine Communications Group Limited Plaintiffs Respondents and Motorola Limited Defendants Appellants Judgment of Mr Justice Clarke delivered the 27th November 2013 1 Introduction 1 1 This Court is yet again called on to deal with questions arising out of an application for security for costs However the principal issue which arises on this appeal is less common than the questions which more typically arise when either the High Court or this Court is asked to deal with the question of security These proceedings generally involve a very significant claim for damages for breach of contract arising out of agreements entered into by the defendants appellants Motorola to provide facilities connected with the broadband business of the plaintiffs respondents collectively Imagine Imagine asserts that Motorola was in significant default in providing the facilities contracted for such that it is said losses well in excess of 100 million were occasioned On that basis Imagine sues for damages for breach of contract 1 2 The proceedings before the High Court have had a difficult procedural history and are already the subject of a number of written judgments The first such written judgment IBB Internet Services Ltd Ors v Imagine Communications Group Ltd 2011 IEHC 253 was delivered by Kelly J on the 6th July 2011 That judgment addressed issues arising from Imagine s first amended Statement of Claim which had been amended following a threatened motion to strike out the original Statement of Claim for the shortcomings allegedly contained therein However this amended Statement of Claim gave rise to criticisms from Motorola to the effect that it was still not possible to properly understand the case being made against it This contention was accepted by Kelly J He stated that it is not possible to ascertain with the degree of certainty that is required the precise case which the plaintiffs wish to make in respect of this claim for a large sum of damages and granted leave for the delivery of a re amended Statement of Claim 1 3 A third attempt at a Statement of Claim was delivered on the 29th July 2011 Motorola contended that this version was not in accordance with the terms of the order made by Kelly J on the 6th July 2011 that it contained amendments which were not authorised by that order and that it was such that it would delay or prejudice a fair trial or the action As a result of these complaints Motorola brought a motion seeking to strike out this re amended Statement of Claim Having examined this version against the order of Kelly J I concluded at para 6 1 of my judgment on that application that The re amended statement of claim has failed to meet the standard imposed by that order and it seems to me that I am left with no option but to make the order sought on behalf of Motorola which is to strike out the statement of claim I then went on to identify a number of areas which needed rectification in any further Statement of Claim to be delivered by Imagine see IBB Internet Services Ltd Ors v Motorola Ltd 2011 IEHC 504 delivered on the 9th November 2011 1 4 The issue of the compliance of the then fourth Statement of Claim delivered on the 30th November 2011 with my order of the 9th November 2011 was the subject of a judgment by McGovern J on the 2nd October 2012 IBB Internet Services Ltd Ors v Motorola Ltd 2012 IEHC 567 On this occasion Motorola claimed that Imagine had failed to properly address difficulties previously identified relating to the loss claimed and separately sought an order dismissing the proceedings for being an abuse of process or for being bound to fail Despite describing the fourth Statement of Claim as evidence of a scattergun approach by the plaintiffs in connection with their claim McGovern J held that it did meet the requirements as set out in my earlier order McGovern J also refused to strike out the claim as being bound to fail holding that the issues raised were properly to be tested at a full hearing 1 5 However the application which gives rise to this appeal was an application brought by Motorola seeking an order for security for costs under s 390 of the Companies Act 1963 as amended s 390 While it will be necessary to turn to the jurisprudence in respect of such applications in early course it is well established and not contested on this appeal that an initial onus rests on a party seeking security for costs under s 390 to establish a prima facie defence to the claim and to establish an inability on the part of the relevant plaintiff to pay costs in the event that the proceedings are unsuccessful and costs awarded Thereafter of course the question of special circumstances arises There is no longer any issue but that Motorola has established a prima facie defence That leg of the test is accepted therefore as having been met However there was a serious contest before the High Court as to whether Motorola had met the second leg which places the onus on the moving party to show inability to pay costs The High Court McGovern J was not satisfied on the evidence that Motorola had discharged the onus on it in that regard On that basis security was refused Motorola appeals against that finding to this Court 1 6 It should however in addition be noted that Imagine had also as a fallback position sought to place reliance on special circumstances being a contention that even if contrary to its primary case it could be shown that there would be an inability to pay costs if Imagine were to lose that situation was it was said due to the wrongdoing of Motorola in respect of which Imagine seeks redress in these proceedings McGovern J of course did not strictly speaking have to go on to consider whether there were special circumstances having regard to the view which he formed as to the failure of Motorola to establish inability to pay costs However McGovern J indicated that were he to be wrong in that primary conclusion he would have determined that special circumstances under the relevant heading existed 1 7 It therefore follows that the primary issue on this appeal is as to whether McGovern J was correct in concluding that Motorola had failed to establish an inability to pay costs However if Motorola were to succeed on that point it would be necessary to go on to consider whether McGovern J was correct in concluding that special circumstances would in any event have led to the application being dismissed I propose to deal first with the primary argument to which I now turn 2 Inability to Pay Costs 2 1 In Usk District Residents Association Limited v Environmental Protection Agency 2006 IESC 1 this Court formulated the test for security for costs in applications under s 390 by reference to the judgment of Morris P in Interfinance Group Limited v KPMG Pete Marwick High Court unreported Morris J 29th June 1988 in terms which made clear that 1 In order to succeed in obtaining security for costs an initial onus rests on the moving party to establish a that he has a prima facie defence to the plaintiff s claim and b that the plaintiff will not be able to pay the moving party s costs if the moving party be successful 2 In the event that the above two facts are established then security ought to be required unless it can be shown that there are specific circumstances in the case which ought to cause the Court to exercise its discretion not to make the order sought In that regard the onus rests on the party resisting the order 2 2 That test is now well established and no issue arose at the hearing before this Court as to its applicability 2 3 However there was significant debate both as to the detail of the legal principles to be applied in considering whether the inability to pay costs element of the test had been made out and also on the facts In the context of the legal argument it is important to turn to the terms of s 390 itself 2 4 That section provides as follows Where a limited company is plaintiff in any action or other legal proceeding any judge having jurisdiction in the matter may if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence require sufficient security to be given for those costs and may stay all proceedings until the security is given 2 5 The key part of the section for present purposes is to be found in that aspect of the provision which reads if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs There are potentially three aspects to that provision which require to be considered First the provision speaks of the relevant inability to pay costs appearing by credible testimony Second the provision requires that there must be reason to believe such inability to pay costs Third the provision requires that there must be reason to believe that the company concerned will be unable to pay the relevant costs There was much debate between the parties as to the cumulative effect of each of those statutory requirements on the standard by reference to which a court considering an application under s 390 should assess the available evidence As that is the key issue of legal principle which arises on this appeal I therefore propose to turn first to the manner in which the trial judge dealt with that issue and second to the arguments on that point made by the parties on the appeal 3 The Decision of the Trial Judge 3 1 The High Court judgment on the security for costs application IIB Internet Services Ltd Ors v Motorola Ltd 2013 IEHC 48 was delivered on the 7th February 2013 In the High Court Motorola submitted that it was sufficient for it to place prima facie credible evidence before the court showing that there was reason to believe that Imagine would be unable to pay costs if unsuccessful in order that it might be said to have discharged its onus in the s 390 application It was also contended that the court should not assess the credibility of the evidence in the absence of cross examination and that the court could not therefore dismiss evidence without cross examination unless there were inherent obvious flaws in same It was contended on behalf of Motorola that the correct approach was to look at the evidence available to the court whether or not there is cross examination and consider in the light of that evidence whether or not the burden of proof has been discharged 3 2 McGovern J rejected the approach advocated by Motorola at para 18 of the judgment in the following terms I do not accept that the court should find itself precluded from making a detailed analysis of the evidence and that it should do no more than simply ascertain whether the defendant s evidence amounts to credible testimony on a prima facie basis A plain reading of s 390 would seem to indicate that credible testimony should be read as involving consideration of evidence proffered on both sides rather than simply addressing the evidence produced by the party moving the motion 3 3 The trial judge then went on to assess the evidence proferred on both sides Expert reports had been prepared by both sides experts concerning Imagine s ability to pay the potential costs of the case McGovern J quoted specifically from an emphasis of matter paragraph contained in the independent auditor s report to the shareholders of the Imagine Group for year ended 31st December 2011 which it is said indicated a significant uncertainty concerning the Group s ability to continue as a going concern Reference was also made in his judgment to the re negotiation of some of Imagine s interest payments the profitability of Imagine s WiMax business and the non inclusion for technical reasons of the full value of substantial spectrum assets being exclusive licenses held in certain broadcast frequency bands for use in the provision of mobile broadband in the Group Accounts It was noted by the trial judge that evidence of a valuation of these spectrum assets of between 50m and 120m was not challenged by counsel for Motorola 3 4 The trial judge s reasons for refusing the application are succinctly expressed at paras 32 34 of his judgment 32 Weighing up the evidence presented on behalf of both parties on this issue I am not satisfied that the defendants have met the first test required by s 390 namely that they have demonstrated by credible testimony that there is reason to believe the plaintiff companies will be unable to pay the costs of the defendant if successful in its defence It is not necessary therefore for me to proceed to the consideration of whether there are special circumstances leaning towards the exercise of my discretion to refuse security for costs 33 But in case this matter proceeds further I wish to state that there is cogent evidence to show that the requirement for the plaintiffs to write down the value of the Group assets is a direct consequence of the alleged breaches by the defendant that are the subject matter of the within proceedings and insofar as that would affect the ability of the plaintiffs to meet the larger figure for costs which has been postulated by the defendants it would seem to come within the ambit of Peppard v Bogoff and would be a sufficient ground for exercising the court s discretion not to grant security 34 Finally on the issue of delay in bringing this application I am satisfied that the defendant moved with reasonable speed having regard to all the circumstances In any event I am satisfied that the delay complained of would not in itself have been sufficient to cause me to exercise my discretion in denying the relief sought 4 The Arguments of the Parties on the Appeal 4 1 At the hearing of the appeal counsel for Motorola identified three core areas where the trial judge was said to be incorrect namely 1 the test for assessing whether an applicant has discharged the onus on it of establishing inability to pay costs 2 the treatment of Note 1 in the 2011 Group Accounts Note 1 and 3 the effect of the valuation of the spectrum assets 4 2 In respect of the first alleged error it was submitted on behalf of Motorola that the trial judge misconstrued their argument as to the test to be applied Motorola says that it was not their argument that a court should be confined to an analysis of the credibility of only the evidence proffered by an applicant concerning the respondent s ability to pay but rather that it accepted that a court had an obligation to review the evidence on both sides However in circumstances where the evidence was not all one way as in this case it was said that a court was required to decide whether an applicant s evidence was credible in the light of all of the evidence before moving on to assess whether there were any special circumstances justifying a trial judge refusing to exercise his discretion in favour of an applicant Motorola contended that their evidence was credible as it had not been challenged by cross examination and that the trial judge should as a result have proceeded to examine the special circumstances limb of the test 4 3 Counsel for Motorola additionally argued in the alternative if he was wrong and the trial judge correct that the appropriate test to be applied was the balance of probabilities test set out in para 18 of the judgment that the trial judge erred in weighing the evidence particularly as to the import of Note 1 and the valuation of the spectrum assets 4 4 Motorola asserted that a fundamental flaw in the analysis of McGovern J was a failure to deal with Note 1 which was said to arise from a confusion between this note and the Emphasis of Matter paragraph in the relevant accounts Counsel pointed to the fact that there is no express reference to Note 1 at any point in the judgment It is contended that this evidence should have been given much greater emphasis by the trial judge as Motorola contend that Note 1 amounts in substance to an admission on the part of Imagine of their inability to pay the costs of the action 4 5 Motorola claims that the trial judge also fell into error in giving unwarranted credit to the valuation of the spectrum assets It is said that Imagine s directors and auditor were both aware of the value of these assets at the time of the publication of 2011 accounts and notwithstanding this still felt it necessary to include Note 1 in their annual accounts As a result it is said that it was not necessary for Motorola to challenge the evidence of value or provide

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  • of that association s legal incapacity 4 9 SAMRA relied on the judgments in R v Commissioner for Northwest Traffic Area ex parte Brake 1996 COD 248 and in R v Ministry of Agriculture Fisheries and Food ex p British Pig Industry Support Group 2000 EuLR 724 which suggest that a distinction may be drawn between public and private law cases thus allowing unincorporated associations to bring judicial review in certain circumstances In British Pig Industry Support Group Richards J stated that there was no overriding requirement for a claimant for judicial review to have legal personality but it is important in such a case that adequate provision should be made for the protection of the defendant in costs Dublin City Council and the State in response pointed to the contrast in procedure between judicial review in Ireland where the applicant brings the proceedings in his own name against the public body and that in England where the dispute is technically between the Crown and the public body 4 10 It follows that it was accepted that in the ordinary course as a matter of common law an unincorporated body such as SAMRA could not bring court proceedings Thus the question which arose on this appeal was as to whether an exception to that general position is to be found in respect of environmental judicial review litigation either generally or by virtue of the terms and structure of the 2000 Act as amended 4 11 Finally there is the European dimension The Aarhus Convention the more common name for the United Nations Economic Commission for Europe Convention on Access to Information Public Participation in Decision making and Access to Justice in Environmental Matters the Aarhus Convention was signed on the 25th June 1998 Although Ireland was one the original signatories to the Convention Ireland only ratified it on the 20th June 2012 The European Union is also itself a signatory to the Convention 4 12 It is helpful to set out some of its provisions Article 2 of the Aarhus Convention defines the terms the public and the public concerned 4 The public means one or more natural or legal persons and in accordance with national legislation or practice their associations organizations or groups 5 The public concerned means the public affected or likely to be affected by or having an interest in the environmental decision making for the purposes of this definition non governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest Article 9 is titled Access to Justice and provides 2 Each Party shall within the framework of its national legislation ensure that members of the public concerned a Having a sufficient interest or alternatively b Maintaining impairment of a right where the administrative procedural law of a Party requires this as a precondition have access to a review procedure before a court of law and or another independent and impartial body established by law to challenge the substantive and procedural legality of any decision act or omission subject to the provisions of article 6 and where so provided for under national law and without prejudice to paragraph 3 below of other relevant provisions of this Convention What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention To this end the interest of any non governmental organization meeting the requirements referred to in article 2 paragraph 5 shall be deemed sufficient for the purpose of subparagraph a above Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph b above The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures where such a requirement exists under national law 3 In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above each Party shall ensure that where they meet the criteria if any laid down in its national law members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment 4 In addition and without prejudice to paragraph 1 above the procedures referred to in paragraphs 1 2 and 3 above shall provide adequate and effective remedies including injunctive relief as appropriate and be fair equitable timely and not prohibitively expensive Decisions under this article shall be given or recorded in writing Decisions of courts and whenever possible of other bodies shall be publicly accessible 4 13 Directive 2003 35 EEC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85 337 EEC and 96 61 EC The Public Participation Directive was designed to incorporate parts of the Aarhus Convention into European Union law 4 14 Recital 4 of the Public Participation Directive states Participation including participation by associations organizations and groups in particular non governmental organizations promoting environmental protection should be accordingly be fostered including inter alia by promoting environmental education of the public Article 1 sets out the objective of the Directive The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus Convention in particular by a providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment b improving the public participation and providing for provisions on access to justice within Council Directives 85 337 EEC and 96 61 EC 4 15 Of particular relevance to the instant case is Article 3 7 which inserts Article 10a into Council Directive 85 337 EEC This provides Member States shall ensure that in accordance with the relevant national legal system members of the public concerned a having a sufficient interest or alternatively b maintaining the impairment of a right where administrative procedural law of a Member State requires this as a precondition have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions acts or omissions subject to the public participation provisions of this Directive Member States shall determine at what stage the decisions acts or omissions may be challenged What constitutes a sufficient interest and impairment of a right shall be determined by the Member States consistently with the objective of giving the public concerned wide access to justice To this end the interest of any non governmental organisation meeting the requirements referred to in Article 1 2 shall be deemed sufficient for the purpose of subparagraph a of this Article Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph b of this Article The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures where such a requirement exists under national law Any such procedure shall be fair equitable timely and not prohibitively expensive In order to further the effectiveness of the provisions of this article Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures The public is defined in Article 2 1 as meaning one or more natural or legal persons and in accordance with national legislation or practice their associations organisations or groups Also of note is Article 2 3 which provides Member States shall identify the public entitled to participate for the purposes of paragraph 2 including relevant nongovernmental organisations meeting any requirements imposed under national law such as those promoting environmental protection The detailed arrangements for public participation under this Article shall be determined by the Member States so as to enable the public to prepare and participate effectively 4 16 It is important to note therefore that the Public Participation Directive has at all material times made provision for the possibility that what one might loosely term environmental NGOs that is bodies that complied with Article 2 3 would have an entitlement to participate in decision making in the manner guaranteed by the Public Participation Directive It was however argued on behalf of Dublin City Council and the State that the Directive while permitting the involvement of environmental NGOs does not require that they be permitted to become involved in court review proceedings irrespective of their legal capacity It was said that so much can be gleaned from Article 2 1 which defines the public as natural and legal persons and associations organisations or groups in accordance with national legislation or practice On that basis it was argued that each member state may in accordance with its national law make provision for rules as to the capacity or qualification of such unincorporated bodies or organisations to participate in environmental litigation governed by Union law There was something of a debate between counsel as to the extent to which it could be said that the relevant provision enables merely regulation of unincorporated bodies or whether it permitted national law to exclude unincorporated bodies not having legal personality in their entirety 4 17 However that latter question would only arise if on foot of ordinary principles of construction of Irish statutes the overall position were to appear to be that unincorporated bodies not having legal personality were entirely excluded from participating at the court level In such an eventuality a question might arise as to whether Irish legislation so construed was consistent with the Public Participation Directive so that the further question might arise as to whether the Irish legislation should or could be construed in a different manner so as to render it compatible with the Directive That question would of course only arise if the ordinary construction in accordance with Irish law of the relevant Irish legislation led to a conclusion that unincorporated bodies not having legal personality such as SAMRA were excluded from the judicial review process by virtue of their alleged lack of capacity 4 18 On the basis of that analysis the first true issue is quite net Leaving aside the issues of Union law for the moment the question concerns the proper interpretation of the 2000 Act as amended and its impact on the ability of an unincorporated body such as SAMRA to have the capacity to maintain environmental judicial review proceedings Does the legislation as counsel for SAMRA argued carry with it the necessary implication that organisations or bodies such as SAMRA have been given the capacity as well as standing to bring proceedings of this type That was the core issue on this appeal 5 Discussion 5 1 While the case made on this appeal by respectively Dublin City Council and the State was largely the same there was perhaps one difference of emphasis in the arguments addressed to the Court at the oral hearing Counsel for the State emphasised that the State s position was not in substance that an unincorporated association such as SAMRA could not bring relevant judicial review proceedings in the environmental field at all but rather that such an organisation could only bring proceedings through appropriate officers that is natural persons such as trustees or committee members authorised by the organisation to bring the proceedings When asked to comment on that submission counsel for SAMRA drew attention to the fact that the provisions of s 50A specify that the applicant for judicial review can be a body or organisation which meets the criteria specified in that section On that basis it was argued that it is the body or organisation itself on which standing is conferred rather than individuals representing that body It seemed to me that that point was well made The legislation confers standing on environmental NGOs who meet the relevant criteria 5 2 It is true of course that in the ordinary way for the reasons already identified an unincorporated association or body does not have the legal capacity to bring or defend court proceedings Such an unincorporated body or association is simply the sum of its individual members with no independent legal personality However it is also clear that there can be whether by legislation or otherwise exceptions to that general rule The first question which arose was therefore as to whether s 50A must be said to have created such an exception It was argued on behalf of Dublin City Council and the State that any such exception must be clear and not arise simply by inference I was satisfied that the true test is as to whether a statutory provision in the absence of expressly conferring capacity carried with it a necessary implication that capacity was being conferred Against that test it seemed to me that the position was clear It would be extraordinary if the legislature went to the considerable trouble of conferring standing to commence relevant environmental judicial review proceedings on environmental NGOs subject to meeting the relevant statutory criteria but at the same time intended that any such environmental NGOs not having legal personality would nonetheless be unable to bring such proceedings by virtue of a lack of capacity 5 3 It seemed to me that this view was strengthened by an analysis of the wording of the legislation itself S 50A 3 starts by specifying that leave shall not be granted unless the court is satisfied of various matters So far as relevant to an environmental NGO the court must be satisfied that it meets the requirements set out at subsection b ii including those specified at III That requirement in turn requires the court to be satisfied that the relevant environmental NGO would be entitled to bring an appeal under s 37 4 c Each of those requirements operates as an alternative to the requirement that the applicant has a sufficient interest in the subject matter of the challenge It seemed to me to follow that s 50A 3 itself necessarily implies that any environmental NGO which qualifies under s 37 must have capacity for the purposes of mounting the sort of challenge contemplated by s 50 itself 5 4 In addition it is clear that the Public Participation Directive allows national law at a minimum to regulate the rules by which associations or other bodies not having separate legal personality can be entitled to bring proceedings It would for example be open to the Minister to make regulations requiring that any such bodies be registered prior to their having capacity It is of interest that another jurisdiction having similar common law traditions to our own that is Malta now allows associations to participate in legal proceedings provided that they comply with the relevant Maltese legislation see the Second Schedule to the Maltese Civil Code Whether such a measure finds favour in this jurisdiction is of course a matter for the Oireachtas However at least so far as environmental litigation covered by European Union law is concerned it is clear that the legislative regime both at the European and Irish level does not necessarily require that associations do not have to go through any formalities prior to having capacity The Minister can regulate capacity both under the Irish legislation and the Public Participation Directive However the Minister has chosen to date not to make any appropriate regulations 5 5 It seemed to me to follow that it is a necessary inference to be drawn from s 50A that it is intended that any environmental NGOs meeting the criteria specified in the section are in the absence of any regulation concerning capacity entitled to bring relevant judicial review proceedings and have the necessary capacity so to do 5 6 I was therefore satisfied that s 50A provides a clear statutory exception by necessary implication to the general rule that unincorporated bodies and associations cannot maintain proceedings 5 7 For those reasons it did not seem to me to be necessary to deal with the extent to which the Irish regime might be said to conform with European Union law for it seemed to me to be clear that SAMRA had on that basis both the necessary capacity and standing to maintain these proceedings 6 Conclusions 6 1 For those reasons I was satisfied that Charleton J was correct to dismiss the application brought by both Dublin City Council and the State seeking to set aside the leave to seek judicial review in this case on the basis of the alleged lack of capacity of SAMRA I was satisfied that on its proper construction s 50A of the 2000 Act as amended carried with it a necessary implication that there is thereby provided an exception to the general rule that unincorporated bodies and associations do not have the capacity to bring legal proceedings Within the parameters of the types of proceedings referred to in the section bodies complying with the criteria therein specified have in my view both capacity and standing to bring proceedings 6 2 If it is desired to regulate further whether by means of registration or otherwise the types of unincorporated bodies who are to have capacity to bring such proceedings then the Minister has power so to do subject to such regulation being intra vires the 2000 Act and being consistent with the Public Participation Directive However in the absence of any such regulation of necessary capacity all environmental NGOs meeting the criteria specified in s 50A of the 2000 Act have in my view both capacity and standing to maintain the types of judicial review proceedings permitted by the relevant aspects of that section 6 3 For those reasons I agreed with the decision of the Court to dismiss the appeal and affirm the order of Charleton J THE SUPREME COURT Appeal Nos 143 2013 171 2013 Denham C J Hardiman J Fennelly J O Donnell J Clarke J Between Sandymount Merrion Residents Association Plaintiff Appellant v An Bord Pleanála Respondent Minister for Arts Heritage The Gaeltacht Ireland and The Attorney General Respondents Appellants Dublin City Council Notice Party Appellant Judgment of Mr Justice Clarke delivered the 27th November 2013 1 Introduction 1 1 Associations of one form or another have played a significant role in the planning and environmental process in Ireland for many years Some such organisations are local and are concerned with general issues arising in their area Others whether local or national are specifically established to pursue environmental aims and objectives The applicant respondent SAMRA is one of the latter It is an organisation established of persons ordinarily resident in the Sandymount or Merrion districts of Dublin or those who subscribe to the aims of the association which are concerned with the preservation and enhancement of Sandymount and Merrion strands 1 2 The background to these proceedings involves an application by the notice party appellant Dublin City Council to the first named respondent An Bord Pleanála relating to an expansion of the existing waste water treatment works at Pigeon House Road Ringsend in Dublin Ultimately an oral hearing was directed at which SAMRA was represented by solicitor and counsel Permission was granted by An Bord Pleanála Shortly thereafter the second named respondent appellant The Minister announced a number of new special areas of conservation under the provisions of the European Communities Birds Natural Habitats Regulations 2011 S I No 473 of 2011 These included one area encompassing among other areas Sandymount Strand It is said that a so called long sea outfall pipe tunnel LSOT connected with the project impinges on what has become a special area of conservation Against that general background SAMRA has sought to initiate judicial review proceedings in the High Court 1 3 However this Court is not now concerned with the merits or otherwise of the underlying challenge which SAMRA seeks to make to the permission granted to Dublin City Council in respect of the waste water treatment plant Rather in circumstances which will be necessary to address in early course both Dublin City Council and the second to fourth named respondents appellants the State sought to have a preliminary issue determined before the High Court challenging the capacity of SAMRA to bring these proceedings 1 4 For reasons which it will be necessary to address that challenge failed before Charleton J Sandymount Merrion Residents Association v An Bord Pleanála Ors 2013 IEHC 291 Dublin City Council and the State appealed against that decision to this Court For completeness it should be noted that An Bord Pleanála did not raise the capacity point before the High Court and did not therefore participate in the hearing before the High Court Likewise An Bord Pleanála for good reason did not participate in the appeal before this Court 1 5 This judgment is therefore directed towards the question of whether SAMRA has capacity to bring these judicial review proceedings Given that practical arrangements for the hearing of the substantive judicial review application continued in the High Court notwithstanding this appeal and given the overall urgency of the case this Court indicated on the 10th October 2013 that it proposed to dismiss the respective appeals of Dublin City Council and the State and that reasons for coming to that view would be delivered at a later stage 1 6 The purpose of this judgment is to set out the reasons why I supported the decision of this Court in that regard 1 7 The starting point has therefore to be to set out the basis of the application made to the High Court I turn to that question 2 The High Court Application 2 1 On 18th January 2013 SAMRA applied for and was granted leave to commence judicial review proceedings by Peart J SAMRA sought to have the decision of An Bord Pleanála declared invalid and quashed as well as declarations to the effect that the State had failed to comply with its obligations under the Habitats Directive Council Directive 92 43 EEC At that time SAMRA also obtained an ex parte injunction to stop Dublin City Council proceeding with the relevant works After subsequent discussions SAMRA accepted Dublin City Council s undertaking not to commence construction of that part of the development comprising the LSOT until such time as the proceedings were determined 2 2 On the 4th February 2013 the proceedings were entered into the Commercial List in accordance with Order 63A Rule 1 g of the Rules of the Superior Courts Dublin City Council s motion seeking to dismiss the proceedings was heard on the 21st February 2013 The motion sought to dismiss on two grounds first the alleged incapacity of SAMRA it not being a natural or legal person and second an alleged non disclosure by SAMRA in its leave application of the fact that the works had already commenced The State supported the motion to dismiss on the capacity ground alone Charleton J delivered his judgment rejecting both grounds for dismissal on the 25th March 2013 2 3 Against that backdrop it is next necessary to turn to the decision of the trial judge 3 The High Court Judgment 3 1 Charleton J commenced his analysis of the legal status of SAMRA by setting out the relevant provisions of the Aarhus Convention Directive 2003 35 EC and the Planning and Development Act 2000 as amended and noted that the focus of those provisions is on the question of the interest and locus standi of an applicant for judicial review rather than the related question of capacity Charleton J held that SAMRA clearly had a sufficient interest to bring judicial review proceedings as required by s 50A 3 of the 2000 Act 3 2 The question of capacity was then discussed First the trial judge acknowledged the traditional position at common law that an unincorporated body does not have legal personality and thus cannot bring either a public or private law action However he held that this inability is capable of being removed by legislation granting capacity to such bodies Charleton J then turned to the relevant requirements under the Planning and Development Act 2000 as amended and in particular s 50A in the following passage The judge must be satisfied that the applicant is a body or organisation the aims or objectives of which relate to the promotion of environmental protection and is pursuing same for at least the 12 months prior and quoting now the text of section 37 4 may appeal a planning decision to An Bord Pleanála because the mater requires an environmental impact statement and in respect of which the Minister for the Environment and Local Government quoting from the text of sub paragraph e thereof may prescribe additional requirements for the purpose of promoting transparency in relation to its membership and its aims or objectives and in relation to the possession of a specified legal personality However Charleton J held that in the absence of the Minister having prescribed any such requirements under the legislation SAMRA was entitled to bring its application for leave Charleton J went on to suggest that It would be contrary to common sense for leave in that context to mean leave until the proceedings are struck out by reason of an applicant so empowered by legislation to commence a case being an unincorporated association with no legal personality Once there is no requirement made by ministerial regulation that appeals to An Bord Pleanála cannot be taken by an association such as the applicant leave means an entitlement to argue the merits of the case through to its conclusion It may be that it might be argued that this subsection deals only with sufficiency of interest But that is not in respect of environmental matters what it says it establishes capacity otherwise how is the High Court to give leave under the criteria set out in the legislation Thus in substance Charleton J construed s 50A as creating an exception to the normal position that unincorporated bodies cannot sue 3 3 On the non disclosure ground Charleton J ruled that any visible indicators of construction in the area were not of such an extent as to have put a member of the public on notice of the commencement of work on the treatment plant and pointed to the fact that various members of SAMRA had sworn or signed declarations that they had no knowledge of this work Therefore that aspect of the motion was also dismissed There is no appeal against this aspect of the judgment 3 4 Against the background of that judgment it is next necessary to turn to the issues which arose on this appeal 4 The Issues on the Appeal 4 1 Detailed written submissions were filed on behalf of all parties From those submissions and the subsequent oral hearing it is possible to identify the principal issues which separate the parties It is perhaps appropriate to start by setting out some matters which were not in controversy 4 2 The underlying legislation is to be found in s 50A of the Planning and Development Act 2000 as inserted by s 13 of the Planning and Development Strategic Infrastructure Act 2006 and amended by s 32 of the Planning and Development Amendment Act 2010 and s 20 of the Environment Miscellaneous Provisions Act 2011 In material part the section as it now stands provides as follows 50A 3 The Court shall not grant section 50 leave unless it is satisfied that a there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed and b i the applicant has a sufficient interest in the matter which is the subject of the application or ii where the decision or act concerned relates to a development identified in or under regulations made under section 176 for the time being in force as being development which may have significant effects on the environment the applicant I is a body or organisation other than a State authority a public authority or governmental body or agency the aims or objectives of which relate to the promotion of environmental protection II has during the period of 12 months preceding the date of the application pursued those aims or objectives and III satisfies such requirements if any as a body or organisation if it were to make an appeal under section 37 4 c would have to satisfy by virtue of section 37 4 d iii and for this purpose any requirement prescribed under section 37 4 e iv shall apply as if the reference in it to the class of matter into which the decision the subject of the appeal falls were a reference to the class of matter into which the decision or act the subject of the application for section 50 leave falls 4 3 It is also of some relevance to refer as indeed s 50A itself does to s 37 which is the section which deals specifically with the entitlement of parties to appeal from a planning decision of a local authority to An Bord Pleanála In material part that section provides as follows 37 4 c Notwithstanding subsection 1 a body or organization referred to in paragraph d shall be entitled to appeal to the Board against a decision by a planning authority on an application for development being development in respect of which an environmental impact statement was required to be submitted to the planning authority in accordance with section 172 before the expiration of the appropriate period within the meaning of that subsection d The body or organisation mentioned in paragraph c is a body or organisation not being a State authority a public authority or a governmental body or agency i the aims or objectives of which relate to the promotion of environmental protection ii which has during the period of 12 months preceding the making of the appeal pursued those aims or objectives and iii which satisfies such additional requirements if any as are prescribed under paragraph e e The Minister may prescribe additional requirements which a body or organisation of the foregoing kind must satisfy in order to make an appeal under paragraph c being requirements of a general nature and for the purposes of promoting transparency and accountability in the operation of such organisations including requirements i in relation to its membership ii that the pursuit of its aims or objectives be otherwise than for profit iii in relation to the possession of a specified legal personality and the possession of a constitution or rules iv that the area of environmental protection to which its aims or objectives relate is relevant to the class of matter into which the decision the subject of the appeal falls These subsections were inserted by s 10 of the Planning and Development Strategic Infrastructure Act 2006 4 4 It is also of relevance to note s 18 of the Interpretation Act 2005 which states Person shall be read as importing a body corporate whether a corporation aggregate or a corporation sole and an unincorporated body of persons as well as an individual and the subsequent use of any pronoun in place of a further use of person shall be read accordingly 4 5 Thus the overall structure of s 50A is clear There are two bases on which an applicant can have standing to bring an application for leave to challenge a relevant environmental decision First the applicant may have a sufficient interest in the subject matter under s 50A 3 b i Alternatively the applicant can be a non governmental agency which meets the criteria specified in s 50A 3 b ii 4 6 It was not disputed that SAMRA met the criteria specified in s 50A Thus it was accepted that SAMRA had standing to bring judicial review proceedings seeking to challenge the validity of the permission in this case However the substance of the case made on behalf of Dublin City Council and the State was that the conferring of standing on a body such as SAMRA to maintain such judicial review proceedings did not get over the question of whether SAMRA as an unincorporated body not having a formal legal personality had the capacity to bring any form of court proceedings Thus the core issue on this appeal was as to whether SAMRA had such capacity it being accepted that if it had capacity it undoubtedly has standing 4 7 Next it is necessary to turn albeit briefly to the general law which ordinarily applies in respect of the power of an unincorporated association to bring or defend proceedings before the courts There was no real dispute between counsel as to the applicable law All parties agree that the general position is that set out in Halsbury 5th Ed Vol 96 par 29 For legal purposes an incorporated association has no separate legal entity as distinct from the individuals who comprise its membership It is also accepted by all sides that the consequence of this is that an unincorporated association cannot sue or be sued in its own name but that there are exceptions to this general rule as can be seen for example from the ability of a registered trade union to participate in certain proceedings However there was disagreement as to the extent of the relevant exceptions As there appears to be a dearth of Irish case law on this point all parties sought to rely on decisions of the English courts 4 8 Dublin City Council and the State relied in particular on the decision in R v Darlington Borough Council ex p Association of Darlington Taxi Owners 1994 COD 424 where leave to seek judicial review on the part of the unincorporated association was set aside on the basis of that association s legal incapacity 4 9 SAMRA relied on the judgments in R v Commissioner for Northwest Traffic Area ex parte Brake 1996 COD 248 and in R v Ministry of Agriculture Fisheries and Food ex p British Pig Industry Support Group 2000 EuLR 724 which suggest that a distinction may be drawn between public and private law cases thus allowing unincorporated associations to bring judicial review in certain circumstances In British Pig Industry Support Group Richards J stated that there was no overriding requirement for a claimant for judicial review to have legal personality but it is important in such a case that adequate provision should be made for the protection of the defendant in costs Dublin City Council and the State in response pointed to the contrast in procedure between judicial review in Ireland where the applicant brings the proceedings in his own name against the public body and that in England where the dispute is technically between the Crown and the public body 4 10 It follows that it was accepted that in the ordinary course as a matter of common law an unincorporated body such as SAMRA could not bring court proceedings Thus the question which arose on this appeal was as to whether an exception to that general position is to be found in respect of environmental judicial review litigation either generally or by virtue of the terms and structure of the 2000 Act as amended 4 11 Finally there is the European dimension The Aarhus Convention the more common name for the United Nations Economic Commission for Europe Convention on Access to Information Public Participation

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  • must undoubtedly be considered moot 58 This conclusion applies to both aspects of the appeal as each is fundamentally predicated on the existence of a deportation order and on the unlawfulness of the disruption to family life which would follow if Mr Lofinmakin was deported to a third country That has not and can now never happen ed by reference to such order 59 The issue then arises under the second tier of the analysis as to whether notwithstanding this finding of mootness the Court should nonetheless exercise its discretion and proceed to hear and determine the appeal For this purpose it should be noted that both of the certified questions have matters in common but also have matters individual to each other In addition under this heading it will be necessary to consider the submission that in any event since there is an outstanding issue on costs the appeal should be heard 60 If the Court should so proceed and pronounce on the certified questions it would in so doing be departing from what is now a well established practice firmly grounded on policy considerations of declining to intervene when a case is moot It will not lightly embark upon such a course and indeed normally will be most reluctant to do so Strong compelling and persuasive reasons will therefore need to exist before exceptions are made to such practice 61 It is very difficult if not impossible to see the existence of any remaining aspect of an adversarial context at this juncture of the proceedings For the reasons set out above the present conflict between the appellants and the respondents certainly the judicial conflict as established in the pleadings is at an end As to the future the position of the children is secure in that they are immune from the direct application of the asylum process that of their mother now lawfully resident in this jurisdiction has remained constant since December 1999 and there are no indications that such may alter With regards to the third named appellant it must be noted that even if the Minister for Justice should again invoke the s 3 procedure although there are no indications that he intends to any challenge thereto would have to be in the context of the circumstances then existing Such even as presently known would be significantly different to those grounding the within proceedings The following instantly come to mind firstly the decision to revoke the deportation order and the reasons which lay behind it secondly the consequences which that decision may have for the lawfulness or otherwise of Mr Lofinmakin s preceding period of residency in this country thirdly the same questions may arise from the decision to grant the latter permission to reside in this State fourthly both he and his wife together with their children will as a family unit have established a further period of lawful residence in this jurisdiction and finally the ramifications of the Zambrano decision 62 The basis of that decision has particular relevance for this appeal for as above noted its foundation rested on Article 20 TFEU and not on Article 24 3 of the Charter which is the context in which the first question has been referred It seems most probable therefore that if any further proceedings should be embarked upon the appellants would rely or also rely on the TFEU article whereas that provision was not argued in this case and thus is not arguable on appeal Consequently even if the third appellant should again face peril from a ministerial proposal both the legal context and the factual context are likely to be so different from the present that a decision on the instant case would have virtually no effect on any future case which of course in itself remains uncertain and unpredictable and indeed may never even materialise 63 In addition two further points should be noted in this context i in light of Zambrano Article 24 3 of the Charter may have to be reassessed for the directness of its importance even if otherwise relevant to the underlying argument and ii notwithstanding how the first question is phrased it seems that the learned judge has in mind that this Court will deliberate on the effects of Zambrano with even the possibility of a reference being made 64 With respect I think that it would be highly undesirable for this Court to discuss Zambrano for a number of reasons which include firstly the absence of any decision on its application in the High Court secondly the absence of any concrete set of circumstances in which any such discussion might take place thirdly it is quite unclear if its effects are causing any difficulties for those who perceive benefit from its provisions or those charged with the administration of the statutory scheme fourthly there is no fear of the issue escaping future scrutiny as the statutory appeal process even though specifying a substantiality threshold is nonetheless sufficiently capable of accommodating a further appeal if the need to do so should arise Finally in view of its recent origin it is self evident that little opportunity has existed for judicial debate on the scope of its application in such circumstances one should exercise considerable forbearance and should defer further consideration of its impact unless and until it becomes necessary to do so 65 With regards to the second certified question which is set out at para 14 above and which relates to the Meadows decision given by this Court it seems to me that whilst acknowledging the importance of that decision and its potential significance to the underlying issues being considered nonetheless it must be remembered that that case had a live set of circumstances as its context unlike the instant situation That factor and the nature and scope of the decision itself really beg the essential question which is whether it is more desirable to academically overview the decision or to adhere to the general practice of deferring its further consideration until the emergence of a concrete situation to which its consequences can be applied 66 In many respects this question is I think at least partially answered by recalling the potential breadth of the Meadows decision as argued for and the scope of the circumstances to which it might apply It is said that such may not be confined to a particular category of right or to a defined type of decision or to a specific class of decision maker Indeed the learned trial judge himself instanced its potential scope when he said at para 8 of the March judgment Furthermore as the concept of proportionality as a facet of reasonableness in administrative law is not necessarily confined to cases involving alleged encroachment on the rights to life to protection against torture or to protection of family life as typically raised in asylum cases but may presumably extend to other personal constitutional rights if not also to the validity of quasi judicial or administrative decisions generally the issue potentially affects the exercise of the judicial review function as a whole and will be of exceptional public importance for that reason 67 Whilst I do not find it necessary to offer any view on its potential consequences and whilst I recognise that this description by Cooke J was in the main intended to highlight the point s public importance nonetheless it is quite clear that the influence of the decision itself cannot be said to have been as yet fully determined Very much because of this I am disinclined to entertain the question in the abstract as in my view it would be more productive and orderly in the long term for its consequences to be integrated into our case law in the normal way rather than by some notional pronouncement Quite frequently a principle of law certainly one involving concepts such as those referred to above can best be understood in its practical application as distinct from its theoretical positioning 68 It should also be noted that the Minister for Justice opposes the application to have these questions determined That of course cannot in any way be decisive but given the centrality of his role as the decision maker and as operating the process by which such decisions are arrived at his views must inevitably carry some weight in the exercise of the courts discretion In this respect the case is unlike Dunne No 1 O Brien or Irwin where the equivalent office holder was most anxious to have the matters determined 69 A further reason for my reluctance to deal with the questions relates to the adjudicative role of the courts in our system of law Given the nature of the Minister s responsibility in the context under discussion which undoubtedly involves from time to time some margin of judgment within overall policy albeit one to be exercised in accordance with law a decision in hypothetical circumstances is less appropriate than what it might be in other circumstances 70 For the above reasons therefore I would refuse to determine the appeal The Issue of Costs 71 In the High Court the respondents were awarded their costs against the appellants following the failure of the leave application The appellants wish to appeal that order and say that unless the substantive grounds are determined on the merits it will not be possible to decide whether the order should stand or stand varied or be discharged Accordingly on this almost discrete ground it is urged that the Court exercise its discretion and determine the appeal 72 The submission made in this regard is somewhat unclear in that it may be viewed as suggesting that the existence of a disputed cost order is sufficient to prevent a case otherwise moot from being so treated In other words such an issue of itself would have the effect of sustaining as a live controversy within the first aspect of the rule the entirety of the appeal Reference is made to the course adopted by this Court in Caldwell and to the remarks made by Murray C J the then Chief Justice in O Brien para 22 supra in support of this position The alternative view of the submission is that the existence of the cost order is but one factor to be considered albeit a factor which it is said should weigh and weigh heavily in this case in favour of the Court exercising its discretion to proceed Whilst I have no difficulty in accepting this viewpoint I must however say that if the intention of the submission is to convey the former I would have to emphatically reject it 73 The type of issue which keeps a case alive and to which the doctrine of mootness is attached is one which of itself gives rise to a dispute or controversy which the courts are called upon to resolve so that some contested position may thereby be clarified It is an issue which grounds the proceedings in the first instance and which motivates their institution ab initio It will typically have the features of a lis or other legal dispute the resolution of which is intended to have an impact on one s legal position or on one s rights obligations or status It will give rise to a cause of action and will stand to the forefront of the substantive relief therein sought Further it will be of a class or kind which our adversarial system will recognise as such and which it is primarily designed to deal with It is only an issue characterised by these notions that mootness is intended to deal with 74 The question of costs as arising in this case lacks in my view the essential features of the type of issue above mentioned Firstly it would be senseless to speak of instituting proceedings regarding costs in the present context proceedings could never be justified solely on that question Secondly a decision on costs will follow from a determination of issues which have been the object of court intervention in the first instance as the phrase costs follow the event is understood the event is not the issue of costs but rather the preceding determination as mentioned Thirdly and finally the very existence of a question of costs is entirely subsidiary to and dependant upon earlier court decision Consequently in my view costs is not a matter which of itself impacts upon the mootness or otherwise of any given issue or case 75 There are two further reasons for which I would reject this submission Firstly because if accepted the same could in practice almost totally nullify the doctrine of mootness In virtually all cases some question of costs generally arises any order even one to the effect that each party bears their own costs could be said to disadvantage one side or the other Sometimes it may be possible to say that an order was granted by reference to some discreet or specific finding but even then the background to such issue or finding may have to be explored On many occasions however that will not be the case with some aspect of virtually every issue being influential in the making of a cost order In either situation if the submission as advanced was accepted such would have a major impact on the application of the rule and would in reality grossly undermine its effectiveness It would be very difficult if not at times impossible to declare a case an issue or an appeal moot if a disputed cost order could entirely neutralise that classification 76 Secondly for a disputed cost issue to operate in the manner which this submission entails would be to invest scarce judicial resources in an exercise which in the vast majority of cases would yield little or no return That could not serve the administration of justice or individual parties I therefore do not believe that the legal situation is as suggested 77 Apart from Caldwell there was no authority open to this Court supporting such a proposition I do not accept that the isolated references in O Brien to the question of costs can be so regarded On the contrary it seems quite clear from a reading of the judgment as a whole that the appeal would not have been determined in the absence of the other substantive reasons given by Murray C J for so doing Caldwell can be differentiated on the ground that the Court simply proceeded with the appeal without either party raising the issue before it in other words the Court was not called upon to consider and therefore did not deal with what the legal position is where the only outstanding issue is costs Secondly given the very special circumstances with which that case was concerned it can be considered as a decision in its own right Consequently I do not believe that there exists any decision judgment or ruling of this Court which truly supports the argument as advanced 78 In summary therefore for the above reasons I do not accept that a case or an appeal or an issue within either which is otherwise properly classified as moot ceases to be so classified purely because of the existence of a disputed cost order I therefore do not accept the appellants submission in this regard 79 In saying this I do not of course underestimate the importance of cost orders in the litigation process in fact quite the contrary It is of the first importance that a court should have the power to address the cost position of parties who appear before it A plaintiff who has been forced to obtain a court order so as to establish rights should ordinarily be entitled to his reasonable costs of having been put in that situation likewise with a successful defendant who should never have been sued in the first place How precisely this issue is dealt with will evidently be case specific Matters such as the reasonableness of raising issues or of contesting them the pursuit of unmeritorious applications or the opposition to appropriate ones and the litigation conduct of both parties particularly if such leads to additional and unnecessary costs being incurred are all factors appropriate to this consideration as obviously will also be the ultimate result Farrell v Governor and Company of Bank of Ireland Ors 2013 2 I L R M 183 There is no doubting therefore the justification for having available cost orders as part of the courts armoury in disposing justly of the litigation which comes before them 80 Finally it should of course be noted that the issue of costs which I have been dealing with is quite distinct to a situation where a court is asked to determine only the question of costs in a case otherwise acknowledged to be moot Cunningham v The President of the Circuit Court Anor 2012 2 I L R M 449 and Rye Investments Ltd v The Competition Authority 2012 I E S C 52 In those and similar cases there was never a question of either party wishing to have the underlying issues proceeded with or of the Court determining them Its sole function was to decide on costs as matters then stood 81 The last aspect which must be considered therefore is whether in the exercise of its discretion this Court should determine the appeal purely because of the costs dispute At the level of principle I could see no basis for doing so In any event I would be firmly against such a course in light of a concession made by the Minister during the course of the appeal hearing on his behalf Counsel indicated that the costs order as made against the applicants in the High Court could be vacated with the result that such applicants will not continue to be disadvantaged thereby 82 Finally in addition to the reasons above advanced for declining to entertain the questions as certified I would add that I am not convinced that such a course would be justified by reference to judicial efficiency or effectiveness 83 For these and the above reasons I would declare the appeal moot and in the exercise of the courts discretion would not entertain its determination THE SUPREME COURT S C No 138 of 2011 Denham C J Murray J Fennelly J McKechnie J MacMenamin J Oreolu Oluwabuanmi Semilore Jedidiah Lofinmakin an infant acting by her father and next friend Akintola Lofinmakin And Egebun Oluwamotunola Peace Ore Oluwa Lofinmakin an infant acting by her father and next friend Akintola Lofinmakin And Akintola Lofinmakin And Rachel Yinka Amonusi Applicants Appellants And The Minister for Justice Equality and Law Reform And Ireland And The Attorney General Respondents Respondents And The Human Rights Commission Notice Party Judgment delivered on the 20th day of November 2013 by Mr Justice William M McKechnie The Leave Application 1 The infants named in the above entitled proceedings are both Irish citizens having been born in this country on the 18th May 2000 and on the 17th March 2003 respectively Their parents who are of Nigerian nationality and who are married to each other are the third and fourth named appellants Their mother Rachel Yinka Amonusi the fourth named appellant arrived in this country in December 1999 and currently is a lawful resident pursuant to the terms of an administrative scheme known as the Irish Born Child Scheme 2005 IBC 05 Nothing therefore turns on the personal position of either the children or the mother save for their relationship with each other and with the third named appellant 2 In August 2003 Mr Lofinmakin arrived in Ireland and either on that occasion or on some later date was given the first of a number of temporary entry permits entitling him to lawfully reside in this country The last permit so granted expired in June 2007 with his application to extend the period of that permit having earlier been refused On the 20th August 2009 the first named respondent the Minister for Justice or the Minister made a deportation order in respect of him having previously rejected an application made on his behalf to remain in the State Judicial review proceedings were then commenced on his behalf and that of his family in September 2009 3 The following reliefs were sought i an order of certiorari quashing the said deportation order together with interim relief restraining the implementation of that order ii a declaration that the legal and constitutional rights of the applicants were infringed as were their rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the Protocols thereto more commonly known as the European Convention on Human Rights the Convention iii a declaration that the rule of law enunciated in O Keeffe v An Bord Pleanála Ors 1993 1 I R 39 which governs the judicial scope of the remedy available to challenge such an order on the basis of unlawfully interfering with fundamental rights was incompatible with the European Convention on Human Rights Act 2003 and iv a declaration that the failure of the State to have in place a process or regime by which a decision to refuse a person permission to remain in the State made under s 3 of the Immigration Act 1999 as amended the Immigration Act 1999 can be appealed to an independent body is in breach of article 13 of the Convention Further ancillary orders were also sought 4 A total of 26 grounds were set out in support of the application Many of these according to the trial judge were unstateable and several others were phrased in such general and vague terms as to be as he put it untenable In reality the primary argument was that recourse to judicial review under O 84 of the Rules of the Superior Courts 1986 to 2013 did not provide an effective remedy compliant with article 13 of the Convention by reason of what was described as the common law constraints of judicial review As this was the only procedure available to the applicants it was alleged that their rights were thereby infringed in this regard 5 In the affidavit supporting such proceedings Mr Lofinmakin asserted a right of residence in Germany although he failed to outline any basis for this claim In a later affidavit he acknowledged that the permission which he once had to reside in that country had lapsed and that he no longer had authority to enter Germany Nothing further turns on this issue In addition some debate was had as to the precise nature of the request which was made to the Minister in a letter dated the 14th September 2009 Whilst it was treated by him as an application to revoke the deportation order the third named applicant on the other hand described it as simply seeking permission to remain in the State on humanitarian grounds until his legal position in Germany had been clarified Again nothing further turns on this point as the learned trial judge refused to accept a submission that the making of that request was an acknowledgment of the validity of the order 6 Having heard the leave application over three days Cooke J in a judgment delivered on the 1st February 2011 2011 I E H C 38 the main judgment dismissed the application on all grounds holding that the applicants had failed to advance under s 5 2 b of the Illegal Immigrants Trafficking Act 2000 the 2000 Act any substantial grounds for contending that the Minister s decision ought to be quashed and set aside He also awarded the respondents their costs He did however defer the making of a formal order as the applicants had notified the Court of their intention to avail of section 5 3 a of the 2000 Act That section permits an appeal to this Court from a determination of the High Court such as that given in this case only where that Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court Zambrano 7 Very shortly prior to that application being heard the European Court of Justice sitting in Grand Chamber issued a ruling under Article 234 of the Treaty Establishing the European Community now Article 267 of the Treaty on the Functioning of the European Union TFEU in Ruiz Zambrano v Office National de l Emploi Case C 34 09 2011 E C R I 01177 Zambrano That case was then considered important in several respects but in particular for the manner in which it might impact upon asylum immigration law Mr and Mrs Zambrano who were both citizens of Columbia had two children whilst living in Belgium They had applied unsuccessfully on several occasions for asylum A direction had issued requiring them to leave the country but the notifying order also included a non refoulement clause stating that they should not be sent back to Columbia in view of the civil war then prevailing in that country In addition the father of the children had also been denied a work permit as well as having been refused unemployment benefit which was in fact the most immediate motivating factor in the issuance of proceedings 8 In its decision the Court held that as in accordance with domestic law the children were Belgian nationals Article 20 TFEU conferred on them Union citizenship which pursuant to EU law is intended to be the fundamental status of all nationals of each member state As such they were entitled to exercise the rights which this status bestows upon them That being so Article 20 TFEU prohibits the existence of any national measure which deprives them the enjoyment of such rights If the father was deported or if he was forced to leave on account of not being able to work it had to be assumed that the children would likewise have to follow him If that occurred they could not enjoy the rights which their EU citizenship conferred on them 9 Accordingly in answering the referred questions the Court said that Article 20 TFEU is to be interpreted as meaning that it precludes a m ember s tate from refusing a third country national upon whom his minor children who are European Union citizens are dependent a right of residence in the m ember s tate of residence and nationality of those children and from refusing to grant a work permit to that third country national in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen para 45 The Certified Questions 10 This decision was evidently open to the trial judge at the certification hearing in respect of which he delivered a second judgment on the 25th March 2011 2011 I E H C 116 the March judgment In that judgment he referred to two particular conclusions which he had arrived at in the main judgment Firstly his decision that Article 24 of the Charter of Fundamental Rights of the European Union or the Charter which the applicants had relied upon had no relevance to the making of a deportation order as in his view such was purely a matter for domestic law para 48 of the main judgment In accordance with Article 51 the Charter which is addressed to the institutions bodies offices and agencies of the Union applies to member states only when they are implementing some aspect of EU law As that was not the situation in the instant case it could not be said that the Article 24 point constituted substantial grounds for the purposes of the 2000 Act 11 Secondly Cooke J also held that in the context of an application for judicial review of a narrative decision such as inter alia a deportation order it is not sufficient as a matter of law to simply assert that the decision is unreasonable irrational unlawful unfair disproportionate or otherwise flawed without also identifying the specific feature fact or omission which constitutes the basis of the proposed challenge para 9 of the main judgment In other words it is impermissible to simply invite a court to re evaluate the substantive decision which is challenged and in effect to substitute its own view of the merits of the application which the contested decision determines para 4 of the March judgment Moreover in the instant case Article 24 of the Charter was relied upon and not Article 20 TFEU as in Zambrano 12 Having thus identified these points which he described as significant the learned judge said that he felt constrained to issue a certificate in respect of the first question as otherwise he would have delivered a judgment in respect of which no appeal was available within the meaning of Article 267 3 TFEU The only alternative was to seek a preliminary ruling from the Court of Justice but if that were to become necessary the referral question s in his view would best be formulated after full consideration by the Supreme Court of the implications of the Zambrano decision 13 The second question was certified so that clarification could be obtained on this Court s earlier decision in Meadows v Minister for Justice Equality and Law Reform Ors 2010 2 I R 701 Meadows in particular with regard to the test of rationality and reasonableness and how both should be applied to the type of decision under challenge in the instant case The issue he felt is important particularly to the asylum list where differing views exist as to how precisely Meadows should be applied in the context of such cases Accordingly he was satisfied that the provisions of the certifying section had been met 14 The two questions therefore submitted to this Court are as follows 1 Whether the High Court was correct in law in holding in para 48 of the judgment that a rticle 24 3 of the Charter of Fundamental Rights of the European Union when read in conjunction with its Article 51 1 has no application to a decision made on the 20th August 2009 by the first named respondent under s 3 1 of the Immigration Act 1999 to deport a third country national illegally present in the State who is the parent of a minor Irish and Union citizen resident in the State 2 Whether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows to an application to quash a decision made by the respondent under the above section to deport a non EU national who is the parent of a minor Irish citizen the High Court was correct in law in exercising its jurisdiction in judicial review on the basis that a It is not sufficient that an application merely asserts that the decision is irrational unreasonable and disproportionate and invites the Court to reassess the balance of reasonableness as between the interests of the State and the rights and interests of the applicant and the child or family concerned b The Court is entitled to require the applicant to identify the particular error omission or other flaw in the respondent s reasons or assessment of the case which is claimed to render the decision irrational unreasonable or disproportionate 15 As the appeal was being case managed by the Chief Justice a significant decision was made by the Minister who on the 21st February 2012 apparently on a further review of the position following Zambrano revoked the deportation order and granted Mr Lofinmakin permission to temporarily reside in this jurisdiction for the period up to the 24th February 2014 As a result of this decision the respondents formed the view that the appeal was moot and so communicated this to the Chief Justice who in the face of a conflicting viewpoint from the appellants directed both parties to lodge written submissions on this issue 16 At the resulting hearing this Court heard argument on the moot issue with each side making submissions which reflected their individual positions It also heard argument on the questions as certified but evidently a determination on the moot point is first required This is my judgment on that issue Submissions 17 The respondents contend that the appeal in the form of the certified questions is moot as following the decision above mentioned there is no longer in existence any deportation order in respect of the third named appellant Consequently he is not a person at risk of deportation from the ministerial order the subject matter of the within challenge Therefore to determine the first question would amount to a purely academic exercise giving rise to a purely advisory opinion Such a course should not be embarked upon as any decision so given can have no effect on Mr Lofinmakin s residency status in this country 18 Likewise it is claimed that the appellants have no locus standi to seek from this Court a review of its earlier decision in Meadows as any clarification of such decision or even comments or observations thereon could not be of any practical use or benefit to them 19 Several cases are referred to in which the issue of mootness has been considered or in which related issues have been discussed These include Murphy v Roche Ors 1987 I R 106 Murphy and Goold v Collins Ors 2004 I E S C 38 Goold where reference is also made to the importance of the discretionary nature of certiorari as explained by Denham J as she then was in De Roiste v Minister for Defence Ors 2001 1 I R 190 at p 204 In Goold Hardiman J quoted with approval from Professor Tribe s book American Constitutional Law 3rd Ed New York 2000 where at paras 3 to 11 it is stated that A case is moot and hence not justiciable if the passage of time has caused it completely to loose its character as a present live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law Thus the Supreme Court has recognised that mootness can be viewed as the doctrine of standing set in a time frame the requisite personal interest that must exist at the commencement of litigation standing must continue throughout its existence mootness 20 Whilst it is acknowledged by the Minister that there are exceptions to this rule it is said that the instant case is not one of them as the appellants do not have a material interest in any decision which the Court might give Accordingly it is claimed that the instant circumstances are clearly distinguishable from those which prompted the Supreme Court to hear the appeal in O Brien v The Personal Injuries Assessment Board No 2 2007 1 I R 328 O Brien and in Irwin v Deasy Anor 2010 I E S C 35 Irwin and from what persuaded Hogan J to continue with Salaja a minor Anor v Minister for Justice Equality and Law Reform 2011 I E H C 51 Salaja In each of these cases apart altogether from the importance of the point of law involved at least one of the parties continued to have a real interest in the outcome of the issue s That is not the situation here and accordingly it is said that the general or prevailing rule should apply 21 Finally Borowski v Canada Attorney General Ors 1989 1 S C R 342 Borowski is cited as being a leading authority in this area and the Court is asked to specifically note that part of the judgment of Sopinka J speaking on behalf of the Court where the rationale for the rule was outlined

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  • been set up with a date set but that the issue became moot by virtue of the hearing and determination of the leave application before that date was reached has a significant risk of occurring in any other case In those special and unusual circumstances this court felt that it was appropriate to hear the appeal notwithstanding its mootness 22 The fact that a case raises an important point of law is not of itself a reason to bring it within the exceptional category The foundations of a case that is moot have fallen away and so they are usually not appropriate cases upon which to decide important points of law unless there are other factors such as arose in O Brien v Personal Injuries Assessment Board and Okunade 23 In making submissions to this Court advocating that the Court should hear the appeal counsel for the appellants relied on Caldwell v Mahon Tribunal 2011 IESC 21 24 Counsel submitted that there was an outstanding order for costs made in the High Court against the appellants and that that order was appealed against by the appellant in their notice of appeal It was submitted that in order to determine whether that costs award against the appellants should stand be reversed or varied the merits of this appeal must be decided by the Court 25 It is not the jurisprudence of this Court that a moot appeal should be heard to determine an issue of costs If such were the case it would render at nought the discretion of the Court on a moot appeal In moot cases on appeal there may be an issue of costs in both this Court and the High Court However that is not a factor in determining whether such exceptional circumstances exist that a moot appeal should be heard by the Court 26 I would distinguish Caldwell v Mahon Tribunal 2011 IESC 21 In general it is not necessary to hear an appeal simply to determine if the costs order was properly made or ought to be set aside I consider Caldwell to have unique circumstances which do not apply in general and do not apply to this case Consequently I would not exercise discretion to hear the moot appeal simply because a costs order was in issue Conclusion 27 The grounds of appeal relate to a deportation order which has been revoked The validity of the deportation order is no longer an issue as it has been revoked If there were a deportation order at any time in the future there would be additional issues of law to those that framed the basis of the High Court decision Consequently it is not a situation where based on the High Court judgment it could be a test case Also in those circumstances it is neither necessary nor appropriate to consider the test to be applied by the High Court in reviewing the validity of the order 28 There is no matter left in issue between the parties Thus the appeal is moot and accordingly the general rule should apply and the appeal should not be heard While the Court has a discretion to hear and determine a moot case in exceptional circumstances no such exception arises in this case 29 Consequently I would dismiss the appeal as moot THE SUPREME COURT Appeal No 138 2011 Denham C J Murray J Fennelly J McKechnie J MacMenamin J Between Orelu Oluwabunmi Semilore Jedidiah Lofinmakin an infant acting by her father and next friend Akintola Lofinmakin and Ebun Oluwa Motunola Peace Ore Oluwa Lofinmakin an infant acting by her father and next friend Akintola Lofinmakin and Akintola Lofinmakin and Rachel Yinka Amonusi Applicants Appellants and The Minister Justice Equality and Law Reform Ireland and the Attorney General Respondents and The Human Rights Commission Notice Party Judgment delivered on the 20th day of November 2013 by Denham C J 1 There are two issues before the Court in this matter The first issue is whether the appeal is moot Secondly if it is held that the appeal is moot the question arises as to whether this is one of the exceptional cases where a court will hear an appeal even though the matter is moot 2 The original proceedings in this appeal arose out of a deportation order but there no longer exists a deportation order in respect of any of the appellants Background 3 The first and second named appellants are Irish citizens the third and fourth named appellants are their parents 4 Originally there were issues as to whether the third named appellant was entitled to reside in Germany The Minister made a deportation order on the 20th August 2009 which was affirmed on the 3rd November 2009 to deport the third named appellant 5 The appellants applied to the High Court for reliefs including leave to seek an order of certiorari of the deportation order The appellants raised issues as to family rights and the test set out in O Keeffe v An Bord Pleanála 1993 1 I R 39 6 On the 1st February 2011 in a reserved judgment the High Court Cooke J refused leave to seek any relief He adjourned the application for a certificate for leave to appeal 7 On the 7th March 2011 the European Court of Justice delivered judgment in Zambrano v Belgium Case C 34 09 2011 All E R E C 491 The rights of citizen children of the European Union were held to derive from Article 20 of the Treaty on the European Union 8 The High Court granted a certificate for leave to appeal to the Supreme Court on the 25th March 2011 noting that the appellants had not relied on Article 20 of the Treaty on the European Union which was the basis for the Zambrano decision and the High Court also granted a certificate relating to the O Keeffe test and the interpretation of the decision of this Court in Meadows v Minister for

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  • prevent the court from determining the dispute between the protagonists here or from making a finding that the public have a right of way across Coillte land to the beach Such determination or finding however is not a finding in rem and either Coillte or the State may contest this Court s determinations in such other proceedings they may wish to initiate 314 The learned judge drew attention to the fact that there was no dispute between the respondent and either Coillte or the State since neither of these bodies have sought to close down either the right of way along the Crushmore Avenue or access to the Sea across the foreshore This statement implies of course that Coillte accepts that a right of way exists a proposition which is by no means clear 315 The appellants submit that it is well established that all persons who have real interest in objecting to the grant of a declaration in legal proceedings should be joined in the action 316 They refer to the evidence given in the course of the High Court hearing by Mr Tony Hennessy Head of the Legal Department and Company Secretary of Coillte Teoranta Mr Hennessy gave evidence that Coillte did not accept that a public right of way existed over the route claimed by the respondent to be subject to such a right and in respect of which the declaration was in fact made Mr Hennessy said that Coillte s view was that access to its land was based on its open forest policy which is permissive access He said that Coillte would wish to resist any claim that there was a public right of way over its lands 317 The respondent counters this reliance on Mr Hennessy s evidence by saying that Mr Hennessy was not familiar with the lands at Ballygilgan had never visited the area and had limited familiarity with the file It says that Mr Hennessy s evidence was of a very general nature and says that he could not comment on whether a public right of way existed It does not accept that Mr Hennessy s evidence consists of a denial on behalf of Coillte of the existence of a public right of way It says that Coillte had not objected to the respondent s resolution of 1st December 2008 318 These points made by the respondent are entirely wide of the mark Mr Hennessy s familiarity with the case the land or the file is not relevant to the key point He gave evidence as secretary of Coillte He stated Coillte s policy and explained its interest Several suggestions made by the respondent like the argument made in the High Court and accepted by the learned trial judge that Coillte was not denying the existence of a right of way highlights the very real interest of Coillte in the subject matter of the action They tend to imply that a public right of way in fact exists 319 The appellants cite the decision of the House of Lords in London Passenger Transport Board v Moscrop 1942 A C 332 An employee of the appellants was not permitted to be represented by his own trade union at a disciplinary hearing whereas members of another union the Transport Union had that right He sought a declaration that the condition in question was unlawful Lord Maughan said at page 345 the persons really interested were not before the court for not a single member of the Transport Union nor was that union itself joined as a defendant in the action It is true that in their absence they were not strictly bound by the declaration but the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by a court in their absence and that except in very special circumstances all persons interested should be made parties whether by representation orders or otherwise before a declaration affecting their rights is made 320 The learned trial judge at paragraph 310 of his judgment said that res judicata would not apply to Coillte which might contest the court s determinations in any proceedings they might wish to initiate In this context he cited Hue v Whiteley 1929 1 Ch 440 and Jones v Bates 1938 2 All E R 237 However neither case concerns whether the principle of res judicata is applicable when a declaration is made affecting the rights of someone not party to proceedings In each of those cases a defence of a public right of way was raised against a claim in trespass In each case the plaintiff was the owner of the land over which the right of way was claimed Neither of those cases therefore decides that a claim of public right of way or any other public right may be maintained in personam over the lands of a third party 321 In our view it is contrary to fundamental principle for a court to grant a declaration of right especially of a public right over the property of a party not a party to the action It is no answer to say that the declaration operates in personam only i e as between the two parties to the action That would be to say that A has established as against B that A has a public right of way over the property of C Such a declaration would be worthless as it would have no effect at all insofar as C was concerned 322 Turning to the facts of the present case it is all the more clear that the declaration should not have been granted The respondent has effectively taken the stance that there is no issue about whether there is a right of way over the land of Coillte It has either asserted or implied that such a right exists When a witness from Coillte contested the claim the respondent sought to discredit or diminish the value of his evidence All of these points demonstrate the need for Coillte to be represented before any declaration could be made affecting its rights 323 It does not follow from any of this that there is not a public right of way over the Coillte land The appellants have sought in reliance on evidence of substantial changes in the routes which now pass through the Coillte lands to persuade the Court that there is no public right of way For the reasons already given the Court cannot pronounce on that question It can only say that in the absence of Coillte no declaration should have been made affecting its lands 324 The result is that the Court upholds the determination of the High Court that there is a public right of way along so much of the route A B as is within the property of the appellants The rule that there should be a terminus ad quem so that public right of way ends in access to a public road does not prevent the making of the declaration in this case It is well established that there may be a public right of way leading to a place of natural beauty such as the beach at Lissadell Moreover the doubtful status of the route through the Coillte lands would not dissuade the Court from granting such a declaration when the facts as found by the learned trial judge are of overwhelming use of the route A B even if that is by reason of the open access policy operated by Coillte 325 The result is that the Court should allow the appeal in respect in respect of routes B C and B D and B E and in respect of that part of route A B which is not part of the property of the appellants I would dismiss the appeal in respect of that part of route A B which lies within the appellants property as well as route B E Right of Parking 326 A number of final questions of detail need also to be considered Firstly the appellants complain that a public right of way does not extend to include the right to park cars along the way The decision of the learned trial judge on this point was as follows paragraph 298 I accept the evidence of those witnesses who said that there was limited parking near the Water Wall over the years and I hold that such right to park for those visiting the Water Wall as a terminus was also part of the dedication but only to the extent that it does not obstruct passage on the roadway for other vehicles and particularly but not exclusively for vehicles used by the plaintiffs in servicing the Alpine Gardens or vehicles used by the plaintiffs tenants in connection with the Fish Farm I am not however prepared to hold that the right to park at or near the Alpine Gardens should require any alteration or adjustment to the recent landscaping carried out by the plaintiffs in that area 327 The High Court order of 3rd February 2011 granted a declaration of a right of parking in the following terms Parking near the Water Wall during daylight hours only and in respect of those visiting the Water Wall as a terminus only and provided vehicular passage of the roadway is not obstructed particularly but not exclusively in respect of vehicles used by the appellants in serving the Alpine Gardens or vehicles used by the appellants tenants in connection with the Fish Farm 328 The appellants dispute the right of the High Court to declare a right of public parking as an adjunct to a public right of way Such a right of parking is not known to the law The learned trial judge did not provide any judicial analysis of the nature of the right 329 The appellants submit that a public right to park in a defined space would leave the owner of the soil without any reasonable use of his land and would render his ownership of land illusory every member of the public would have the right in the area defined It cannot be correct that a public car park can be created in the heart of private property 330 The declaration made by the High Court is not related to any ordinary right of stopping temporarily during a journey along a public road The terms of the declaration made by the High Court are limited to right to park for those visiting the Water Wall as a terminus The qualification to the effect that those parking their cars should not obstruct passage on the roadway for other vehicles is no more than a statement of the general law As the respondent points out in its written submissions this is a matter governed by the law of nuisance 331 The appellants say that a map prepared by the Respondent s engineer John Owens not only shows parking on a two foot wall and a flower bed that is recorded as a feature since 1837 but also shows parking off the road blocking user of the avenue and blocking the entrance to the cottage and to the Alpine Garden and it shows parking on the appellants lands which have been extensively restored and landscaped 332 The appellants say that it is not possible to exercise this claimed right of parking without blocking the avenue or trespassing on the appellants lands either on the landscaped areas by the Alpine Garden or on the cut grass verges or on the two foot high stone wall border to the 19th century flower garden by the avenue or on the driveway to the cottage by the Alpine Garden or the slipway 333 The respondent counters the complaints made by the appellants regarding the grant of rights of parking by emphasising that under the ordinary law of nuisance users of the highway are not entitled for example to park vehicles so as to obstruct the highway This does not of course address the point that the declaration made in the present case involves the grant of a right to park cars not merely on the highway or public right of way as declared but on land owned by the adjoining proprietor 334 In short the declaration made by the High Court provides a right for the general public not merely to pass and repass along the route of the public right of way to park cars not merely along the route of that way but on adjoining land which is the property of the appellants 335 To deal with this point it is appropriate to refer to the counterclaim made by the respondent In the counterclaim itself at paragraph 5 A it claimed a declaration that the roadways were subject to rights of way together with the ancillary rights to stop and park in favour of the public In its reply to a request for further particulars on 17th December 2009 it said that a map would be furnished showing parking near the water wall It said that the claim was The rights of the public to stop and park extends to all of the rights of way marked yellow on the map annexed to the Defence and Counterclaim and such user must not constitute an obstruction to the rights of way or an encroachment on the lands of the Plaintiffs not subject to the rights of way emphasis added 336 It is clear however that in the course of the hearing the claim was extended to include encroachment on the lands of the Plaintiffs Mr John Owens an engineer with the respondent gave evidence and produced a map showing parking just off the road emphasis added 337 It is clear therefore both from the terms of the High Court order and the evidence given by and on behalf of the respondent that the public right of way has been granted so as to include an ancillary right to park on the adjoining lands of the appellants 338 The learned trial judge found at paragraph 298 that the right to park for those visiting the Water Wall as a terminus was also part of the dedication The dedication he was speaking of was of course what he found to have taken place in the period from 1857 to 1861 We have already held that it was not possible to make a finding of dedication at that time based on user commencing in the 1950s a point which applies with even greater force to the notion the Sir Robert Gore Booth and his son could have had in their contemplation the parking of motor cars yet to be invented on their land There was no evidence and no suggestion that any corresponding activity took place in the period of the Larkin Map 339 The grant of a right of parking off the route of a public right of way including the public road entails the creation of a public car park on private lands No authority has been produced for the proposition that such a right can be made ancillary to a public right of way It seems contrary to the principle that a public right of way does not extend to a jus spatiendi Costello J in Smeltzer v Fingal County Council 1998 1 I R 279 already cited said at page 286 But it is well established that there can be no common law right in the public or customary right in the inhabitants of a particular place to stray over an open space i e that is there is no jus spatiendi see Halsbury s Laws of England 4th ed vol 34 para 500 and Attorney General v Antrobus 1905 2 Ch 188 I do not think that Giant s Causeway Co Ltd v Attorney General 1905 N I J R 301 is an authority to the contrary In that case the court expressly held that no jus spatiendi existed and decided on the facts established before it that a public right of way over a road to the Giant s Causeway existed and not over certain pathways 340 In our view the grant of the additional ancillary to park motor cars off the route of the public right of way cannot stand and should also be set aside 341 We have concluded that for a number of reasons the finding of dedication made by the learned trial judge in the period 1857 to 1861 during which time the estate was not entailed cannot be sustained The learned trial judge however also expressed the view that the law stating that there cannot be dedication during a period of entailment should not be followed In the circumstances of the present case for reasons already given we are of the view that the evidence of user during the period from the early 1950s could not in any event lead to an inference of dedication In the period of wardship we have given reasons for concluding that there was not dedication by the President of the High Court Even though the learned judge did not find any separate act of dedication during Sir Josslyn s occupation after 1982 we have for the sake of completeness addressed that issue and have concluded that the continued user during that time could not lead to an inference of dedication For these reasons it is not necessary to reconsider the long established legal rule that only the fee simple owner can dedicate Conclusion 342 For the reasons given in this judgment we propose that the Court allow the appeal insofar as the High Court granted declarations of public rights of way over routes B C B D B E and that part of A B which is not the property of the appellants We would dismiss the appeal in respect of the part of route A B which runs from Bunbrenóige Bridge which in the interests of clarity we mark as point F in a westerly direction to point B In addition we propose that the appeal be allowed against the grant of any right to park motor cars on the land of the appellants not subject to a public right of way THE SUPREME COURT Appeal No 089 2011 Denham C J Murray J Fennelly J McKechnie J MacMenamin J BETWEEN EDWARD WALSH and CONSTANCE CASSIDY Plaintiffs Appellants and THE COUNTY COUNCIL FOR THE COUNTY OF SLIGO Defendant Respondent Judgment delivered the 11th day of November 2013 by Mr Justice Fennelly Mr Justice McKechnie and Mr Justice MacMenamin Introduction 1 A public right of way is a highway The general public has the right to pass and repass at all times across the land over which the way runs 2 The way may be claimed to run over the avenues of a great landed estate such as Lissadell It may also pass over the fields of a farm large or small over a suburban garden see Bruen v Murphy and others High Court unreported 11th March 1980 or along a passage way leading into a public house see Connell v Porter 2005 3 I R 601 3 Even if it is not maintained by the public road authority a public right of way is in law a highway It confers the unrestricted right of the general public to pass and repass at all times of the day or night and at all seasons without notice to or permission from the landowner over whose land the way runs 4 The landowner must yield to and respect the rights of the public and must accept any consequent invasion of his right to undisturbed privacy and the enjoyment of his property 5 The law of public rights of way is of ancient origin Except where it can be shown to have existed from time immemorial or is created by statute a public right of way is established by proof that the landowner dedicated the way to the public Dedication may be inferred from a consideration of all the circumstances In Scotland a public right of way like a private right of way in our law may be created by prescription alone Dedication is not necessary see paragraphs 68 and 69 below In England prescription has been introduced by statute since 1932 In that jurisdiction there has been much modern legislation providing for public rights of access to private paths and lands 6 The common law of dedication continues in force in Ireland It requires consideration of all the facts the duration extent nature and context of public user and the possibility of inferring or presuming that the landowner has dedicated the way to the public Mere proof of public user does not suffice to create the right 7 These legal principles ensure that an appropriate balance is struck between public and private rights Depending on the circumstances user may provide compelling evidence of dedication to the public or may more properly be ascribed to tolerance or liberality of the landowner The landowner will not by respecting a tradition of generosity and openness be deemed to have encumbered his land with public rights The law does not convert such acts into legal obligations 8 In the present case the respondent as the County Council for the County of Sligo claims that public rights of way affect all the avenues in the Lissadell Estate The High Court trial proceeded over some 57 days The Court heard evidence of a large number of witnesses of fact as well as expert witnesses regarding the history of the estate and of its former owners the Gore Booth family and the use by the public of the ways through the estate 9 The learned trial judge McMahon J delivered an impressively comprehensive judgment The history is complex Each of the routes through the estate has its own particular history The judgment provides such a complete statement of the facts that this Court is enabled to rely on it without question though in a number of important respects it draws its own inferences It contains comprehensive consideration of the law regarding public rights of way The learned judge also expresses his own views of the law often trenchantly stated 10 A map was appended to the High Court judgment The same map as referenced therein is used in this judgment This map illustrates each of the routes under discussion Out of deference to the meticulous and detailed judgment under appeal this judgment is necessarily very lengthy It will deal with the following issues a The history of the estate b The law regarding public rights of way including i The time at which dedication takes place ii Incapacity to dedicate on the grounds of lack of title iii The nature of public user as of right iv Who may maintain a claim for a public right of way c The history of each of the four routes through the estate i The general evidence regarding all the routes ii The history of route A B from Crushmore through the Coillte lands iii Route B C the Main Avenue iv Route B D Forge Avenue v Route B E Farm Avenue vi The coastal route the maps and the Grand Jury presentments See map for illustration of each of the routes d An overview of the High Court judgment i The capacity in which the respondent made its counterclaim ii Treatment of the law regarding dedication iii Treatment of acts of opposition from the landowner iv Admission of hearsay evidence e The period of wardship of Sir Michael Gore Booth f The period of occupation by Sir Josslyn after 1982 g The finding of dedication by Sir Robert and Newcomen Gore Booth in 1857 to 1861 h Treatment of Sir Robert s intentions regarding privacy of the demesne i Whether a declaration by the High Court should have been made affecting Coillte lands j Whether a declaration by the High Court should have been made granting a right of parking on the appellants lands History of Lissadell Estate 11 Lissadell was one of the major Anglo Irish landed estates Its history can be traced to Elizabethan times It was prior to its purchase by the plaintiffs the home for centuries of the Gore Booth family At its greatest extent the estate comprised some 32 000 acres of land comprising of the great house and demesne as well as tenanted lands For large parts of its history the title to the estate was entailed and held under strict settlements Save for some short identifiable periods during the entire period from 1800 until 1982 the owner in possession for the time being was a tenant in tail male 12 The present case is concerned with the claim by the respondent the County Council of the County of Sligo that the public enjoys rights of way to traverse all the roads through the demesne lands which remain after the disposal in two stages of the great bulk of the estate under the Land Acts 13 Lissadell is on the coast overlooking the sea between the town of Sligo and Raghley Head to the west It is within view of Ben Bulben and less than five kilometres from Drumcliff 14 The Gore Booth family originally lived in Ardtermon Castle to the west of the lands involved in the present case The original mansion house at Lissadell was built by the 1st Baronet whose name was actually Sir Booth Gore between 1750 and 1760 on the seafront near the site of what are now known as the Alpine Gardens That house was demolished in turn about 1840 15 A number of expansions and improvements were undertaken in the early years of the nineteenth century partially during the tenure of Sir Robert Newcomen Gore Booth the 3rd Baronet but more significantly during that of Sir Robert Gore Booth the 4th Baronet who was born in 1805 Sir Robert was chairman of the Grand Jury predecessor of the local authority a position which made it possible for him to influence changes to roads affecting the estate Changes to roads and avenues are described later A material issue in the case was a Grand Jury presentment in 1814 for work to be done at the Water Wall within the demesne 16 Sir Robert demolished the first Lissadell House and erected the present mansion house of Lissadell It was built about 700 metres back from the sea and on higher ground to permit views of the sea Its great windows in the words of the poet were open to the south Associated landscaping works were undertaken The construction work took place between 1830 and 1833 In addition the learned High Court judge found From the 1830s onwards several other features in addition to roads were constructed within the demesne including a sea wall farmhouses and a slipway a new network of internal avenues was also laid out These new avenues included the main avenue to the new Lissadell House and an avenue now known as the Forge Avenue The Western Wood was planted between 1827 and 1830 The dates and details of these features will be discussed later 17 Sir Robert engaged Francis Goodwin to be the architect of the new house Sir Robert s attitudes which he conveyed to his architect were characteristic of the aristocracy of his time Dr Vandra Costello an expert in landscape history and theory gave evidence on behalf of the appellants to the effect that Sir Robert s principal concern as conveyed to Mr Goodwin was that the house and its surrounding gardens would remain completely undisturbed by traffic or even by the visible presence of servants The plans for the servants quarters were deliberately designed according to Dr Costello so that the servants were removed if not from all at least from the greater part of the house and their removal in some degree from observation A servants tunnel and estate offices were designed specifically to render an unobstructed view from every front of the house and also that the pleasure grounds may be continued quite round it without interruption from out buildings carts etc whereby the lawn and pleasure grounds will be quite private 18 The improvements included the building of a ha ha or retaining wall running for several hundred metres along the bottom of the south lawn which physically separated the lawn area from the park and providing unbroken views of the sea 19 The learned trial judge basing himself on the evidence of Mr John Clarkin from the Ordnance Survey Office Dr Vandra Costello and Mr Rob Goodbody respectively the experts called on behalf of the plaintiffs now appellants and the defendant now respondents found at paragraph 229 of the judgment as follows Sir Robert 4th Baronet after the new House was built in 1836 demolished the old house by the seafront and refocused the demesne around the new House This meant that a new network of avenues roads was developed which was designed to service the work areas and to provide appropriate access to the House and its immediate environs and preserve not only the privacy and security for those living in the House but also to respect the imperatives of a landscape design which guaranteed minimum visual intrusion by those servants and tradesmen mainly whose business brought them within the vicinity of the House This is borne out by the elevated site on which the new House was built by the servants access tunnel to the House itself and by the ha ha wall to the south of the House which ensured an unimpeded view to the sea 20 Sir Robert contemporaneously embarked on the enlargement of the estate in an easterly direction by acquiring some 555 acres of land at Ballygilgan in 1838 He caused 120 families to be evicted and paid their passage to Canada In evidence to the Devon Commission Sir Robert said that the the intention was not to make a large farm but to increase the domain The learned trial judge described this as an exercise in aggrandisement befitting the new mansion the purpose being to aggrandise the demesne when the new mansion was built The word demesne in this context means the lands surrounding the manor house for the enjoyment of the owners and not granted out in tenancy It should be added that Sir Robert later acquired some further land at Ballygilgan which had the effect of re routing the main surrounding or Ballinaphull Road somewhat to the east This road is the modern R347 which goes from Carney in the east loops north around the estate To the west this road joins with the western boundary of the estate as it travels past Maugherow south to the beach to the Burrows The learned trial judge found that the demesne wall on the eastern side of the demesne was most probably built at the same time as the R347 i e between 1818 and 1828 and marked the boundary of the demesne as it then was 21 The learned trial judge gave credit to Sir Robert for certain philanthropic actions including leadership of the co operative movement in Sligo The Times of London of March 7th 1881 recorded that Sir Robert had spent 40 000 in feeding the starving populace at the time of the Great Famine 22 However over time as the learned trial judge noted the position of the Anglo Irish families occupying these historic houses became more precarious Dr Costello gave evidence that Sir Henry Gore Booth drew up a scheme for the protection of the lives and property of loyalists in Ireland He received a letter about 1880 containing a death threat from Captain Moonlight 23 By indenture of disentailment on the 5th November 1857 between Sir Robert Gore Booth 4th Baronet his son Robert Newcomen Gore Booth both of whom lived at Lissadell House at the time and Thomas Mostyn the trustee the estate was disentailed Robert Newcomen Gore Booth was the remainderman under the terms of the deed While he is said to have served in the Crimean War that war ended in February 1856 He lived at Lissadell at least for some time with his father but died in 1861 as the learned trial judge found in a boating accident without inheriting Sir Robert died in 1876 The title then passed to his brother Sir Henry 5th Baronet 1843 1900 24 From 1861 the estate was held by Sir Robert 4th Baronet for life then to his brother Sir Henry 5th Baronet for his life with remainder to Sir Henry s first and other sons successively in tail male with divers remainders over By a further disentailing deed of 12th March 1894 made between Josslyn Gore Booth the future 6th Baronet his father Sir Henry Gore Booth 5th Baronet and Mr F R M Crozier the entail created by the will of Sir Robert of 1861 was barred The estate was conveyed to Mr F R M Crozier subject to the power of appointment of Sir Henry William Gore Booth and Sir Josslyn Gore Booth On the following day the 13th March 1894 the power of appointment was exercised The estate was once more entailed Sir Henry was the tenant for life with remainder to Sir Josslyn Gore Booth for his life without impeachment for waste with remainders in fee tail to the first and every other son of Sir Josslyn Gore Booth successively 25 The 6th Baronet Sir Josslyn Gore Booth was the life tenant in possession from 1900 In 1904 he transferred 28 000 of the 32 000 acres of the estate to the Land Commission under the Land Purchase Ireland Act 1903 Wyndham s Act reducing its size to some 3 000 acres 26 Sir Josslyn developed new enterprises on the reduced estate The learned trial judge found that the property was a vibrant commercial operation for much of the early half of the twentieth century employing as many as two hundred people at its height in the early nineteen hundreds Dr Costello says in her report that Lissadell was prior to the First World War one of the largest agricultural and horticultural farms in what was then the United Kingdom of Great Britain and Ireland All of this took place during the tenure of Sir Josslyn 6th Bt The learned trial judge continued The reduced estate of approximately 3 000 acres around the house was run efficiently for much of the early part of the twentieth century with much industrial activity evident within its grounds including a commercial tree plantation a sawmill and timber business various horticultural industries poultry dairy and livestock farming an oyster farm a school of needlework private allotments and a shop where the coach house is now located By 1900 the estate employed two hundred staff 27 The allotments here referred to were let out in the Upper Garden Dr Costello says that allotment holders were given permission to use avenues necessary to carry out their enterprises There was even a munitions factory at Lissadell during the First World War While the learned judge remarks on the contemporaneous political and social activities of Sir Josslyn s sisters Constance Markievicz and Eva Gore Booth they play no part in the history of the present case The learned trial judge quoted from the memoirs of Thomas Kilgallon who started as a cabin boy to Sir Henry Gore Booth and ended as a private butler in Lissadell He wrote circa 1900 about the roads and avenues on the estate The grounds carriageways avenues and walks were beautifully kept There were no carts allowed on the avenues or in the woods All timber cut had to be carried out of sic men s shoulders to the carriageway All around the house and glens were cut by the garden men with scythes There were no lawnmowers

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  • are a claim for damages in negligence against the respondents arising from the alleged manner in which they conducted his case in those proceedings 10 On the 18th September 2009 the appellant commenced these proceedings claiming damages for alleged professional negligence of the respondents arising from the defence of his appeal in Horan v O Reilly Ors 2008 IESC 65 The damages sought by the appellant include 1 loss of one fifth share of lottery jackpot 459 059 17 2 bill of costs 300 000 00 estimated 3 loss of opportunity to invest lottery winnings unascertained 11 At the core of the appellant s claim in this case is an issue as to submissions in the previous case It is claimed in the statement of claim as follows The defendants were crucially negligent in answering submission 3 1 of the appellants submissions which permitted the Supreme Court to wrongly conclude at paragraph 25 of the judgment that it was common case that the bet placed by the syndicate was 6 00 which represented the contributions of only four syndicate members not including Mr Horan the Plaintiff In answering this submission in the manner in which they did the Defendants permitted the Supreme Court to indulge in the fanciful and erroneous notion in the context of this or any lottery syndicate as to the value of the winning ticket and not to the real issue who were syndicate members at the time the winning ticket was purchased By answering the Appellants submission 3 1 in this manner the Defendants were grossly negligent in opening an issue which is not dealt with in the High Court judgment and which permitted the Supreme Court to analyse matters as they did which caused severe loss and damage to the Plaintiff 12 The claim is denied by the respondents and a full defence has been filed 13 The appellant served notice of trial on the 1st April 2011 certified the case as ready attended at the non jury list on the 18th May 2011 and called the case on for trial The case was assigned a hearing date of the 26th July 2011 14 On the 21st July 2011 at the call over for cases for hearing on the non jury list the appellant sought to adjourn the case from the hearing date of the 26th July 2011 The President of the High Court refused the application 15 The appellant lodged an appeal from the decision of the President The appellant issued a notice of motion returnable before this Court in connection with the appeal 16 On the 26th July 2011 the appellant did not attend in the High Court for the hearing of the action A Mr Looney not a solicitor on record for the appellant and the appellant s wife attended and sought an adjournment on the basis of a medical certificate produced to the President of the High Court The President ordered that a full medical certificate be produced to the Court on the next occasion 17 The President adjourned the hearing of the action from the 26th July 2011 and the case was specially fixed for hearing on the 4th October 2011 18 On the 4th October 2011 the appellant appeared in court The appellant s counsel applied for an adjournment of the hearing The President of the High Court refused the adjournment as the case had been specially fixed for hearing that day The case was sent to Peart J for hearing 19 Counsel for the appellant renewed his application for an adjournment to Peart J The learned High Court judge allowed the appellant time as requested to enable the appellant deliver further particulars and the case was adjourned to the 5th October 2011 The learned High Court judge said that instead of amending the statement of claim the appellant could simply provide additional particulars by letter The learned High Court judge said that he would hear the case that week After an exchange with counsel it was arranged that the court would hear the matter tomorrow i e the 5th October 2011 20 On the 5th October 2011 when the case was called counsel for the appellant told Peart J that the appellant was not in court Counsel informed the court that the appellant s solicitor had telephoned him and that he was on his way from Mayo Peart J adjourned the hearing to 2 p m at the request of the appellant s counsel At 2 p m the appellant was not in court 21 The High Court judge dismissed the case in the terms set out above and the respondents were awarded their costs Decision 22 At the core of this case is the appellant s failure to attend court when the date for the hearing of his case had been specially fixed Indeed when the High Court had facilitated him by adjourning the case from the 4th October 2011 to the 5th October 2011 and again to 2 p m on the 5th October 2011 23 At issue in this appeal is whether the learned High Court judge acted within his jurisdiction in dismissing the appellant s case in all the circumstances 24 The proceedings in issue are those of the appellant and he has carriage of them and issued them and served a notice of trial The case was fixed for hearing on the 26th July 2011 The appellant applied to have that date adjourned his application was refused but ultimately the President of the High Court facilitated him and adjourned the hearing of the action from the 26th July 2011 and specially fixed the case for hearing on the 4th October 2011 25 The consequence of a date being specially fixed is that the case is set to proceed on that date It requires exceptional circumstances for a case listed as specially fixed to be adjourned 26 However on the 4th October 2011 counsel for the appellant sought an adjournment which was refused by the President of the High Court When the case came before Peart J for hearing on the 4th October 2011 a further application for adjournment was sought on behalf of the appellant To facilitate the appellant Peart J adjourned the case to the 5th October 2011 and made provision for any additional grounds to be served by letter 27 The appellant was not in court at 11 00 a m on the 5th October 2011 the Court being informed that he was on his way from Mayo The learned High Court judge adjourned the matter until 2 p m to facilitate the appellant who he had been told was travelling up from Mayo 28 However at 2 p m the appellant was not in court The High Court judge then dismissed the appellant s proceedings his decision is set out fully earlier in this judgment 29 It is clear that the learned High Court judge dismissed the appellant s proceedings because he had not shown up in court when the case was specially listed for hearing Indeed the Court had been very flexible and adjourned the case from the 4th October 2011 to the 5th October at 11 00 a m and then to 2 p m on the 5th October 2011 in ease of the appellant It is important to emphasise that this Court is not here concerned with the delay jurisprudence which applies when it is suggested that proceedings be dismissed for inordinate and inexcusable delay Rather the Court is concerned with a situation where a plaintiff simply fails to attend to prosecute his case particularly where the case is specifically fixed 30 The appellant was given every opportunity on the 4th and 5th October 2011 to advance his case and yet he had not done so nor was any valid reason given for his absence on the 5th October 2011 While the appellant has suggested that he believed the case to have been settled on the 4th and that his legal team withdrew on the 5th there was no reason why he could not have attended court at the very least at 2 p m on the 5th to make whatever application he wished On the evidence the appellant simply chose not to attend when he knew his case was due to be heard 31 In administering justice a judge has to be fair to both sides in litigation In this case the respondents had been put on notice of the trial hearing on the 26th July 2011 and then the specially fixed date of the 4th October 2011 Furthermore they then had the case adjourned to the 5th October 2011 first to 11 00 a m and then to 2 00 p m Litigation is costly to all including the respondents 32 In administering justice a judge also has to have due regard to the careful use of expensive court time and the limited resources of the courts 33 I am satisfied that in all the circumstances of the case the learned trial judge was within his jurisdiction in dismissing the appellant s proceedings when he had failed to appear in court at 2 p m on the 5th after the Court had taken steps to facilitate the appellant 34 For the reasons given I would dismiss the appeal THE SUPREME COURT Appeal No 392 2011 Denham C J O Donnell J Clarke J Between Martin Horan Plaintiff Appellant and John O Dwyer and Evan O Dwyer practising as Crean O Cleirigh and O Dwyer solicitors Respondents Judgment delivered on the 5th day of November 2013 by Denham C J 1 This is an appeal by Martin Horan the plaintiff appellant referred to as the appellant from the order of the High Court Peart J made and perfected on the 5th October 2011 where the learned High Court judge ordered that the appellant s claim be dismissed for abuse of process High Court Judgment 2 The learned High Court judge stated well this is a well this is a case that was in the list for hearing yesterday Before the matter came before me yesterday morning an application was made to the President of the High Court to adjourn This was at the request of counsel and solicitor who had very recently been instructed by the plaintiff and the application was moved on a couple of bases as I understand it partly on on a medical ground I think and a medical certificate might have been handed to the President but also on the basis of the matter coming to the solicitor and counsel in question at very short notice and without adequate opportunity to consider the matter and there was a suggestion made that the statement of claim might actually have to be delivered or it might have to be amended That application was refused by the President and the matter was sent up to me There had been a previous application on the 21st of July 2011 where the plaintiff appeared in person and sought an adjournment from the President of the High Court in relation to this same matter and at that point it was due to be heard on the 25th of July and that application was refused as well and the President of the High Court on the 21st of July directed that the matter proceed on the 25th of July I m not aware of what happened on the 25th of July but one way or another it seems to have been back in the list yesterday before the President and as I ve said he refused a further adjournment and yesterday the plaintiff was here with his new solicitor and counsel duly instructed to appear for him and I was requested for some time so that instructions could be taken in relation to what was considered to be a necessary application to amend the statement of claim Having heard what counsel said I took the view that the matter could be perhaps dealt with or addressed by the furnishing of additional particulars of negligence in the form of a letter rather than a formal amendment to the statement of claim That was principally to avoid the perhaps necessary consequential adjournment which the defendant would require as opposed to the plaintiff in order to file an amended defence and I indicated that the letter containing additional particulars of negligence should be prepared and delivered to the defendant s solicitors by yesterday close of business On that basis it was felt by all I think that the matter could proceed today and I indicated that I would hear the matter today and tomorrow if necessary and this morning I was told by counsel for who had yesterday appeared for the plaintiff that he was thought to be on his way to Dublin but wasn t here and but that the additional particulars of negligence had not been furnished as required by my direction yesterday and that some difficulties appeared to have arisen between the plaintiff and his newly instructed legal team such that the newly instructed legal team felt that they could no longer continue to act for him that there was a conflict of interest and I may have been informed that certain advices were not being taken by him which had been urged upon him Because the plaintiff was thought to be en route from Mayo I think to Dublin at the time all of that was said to me I suggested that the matter be put back to 2 pm today so that that position could clarify and at 2 pm today I am informed by counsel for the plaintiff that he is not en route and is not expected to be here and the that legal team solicitor wishes to now come off record It has been clarified that a notice of change of solicitor was filed and that was on the basis that another solicitor Mr Looney was not in fact on record which now appears to be the case that he was on record in a formal way at least So the plaintiffs although the plaintiff is not here his case is listed for hearing from yesterday and in the circumstances that I ve outlined listed again today Mr McGettigan for the defendants quite reasonably is outraged by all of this and the inconvenience and difficulties which this poses for the defendants and he seeks a dismissal in all the circumstances and I think that is a perfectly reasonable application I know there is a background of difficulty in relation to the relationship between this plaintiff and the defendants arising from the loss of a Supreme Court appeal in previous proceedings That is the basis on which claims of negligence are made I don t regard those proceedings the commencement of those proceedings as an abuse of process Clearly the plaintiff has an entitlement to bring a claim alleging such professional negligence but there is a concomitant obligation on him to pursue those proceedings with diligence and in my view the sequence of events especially from the summer to now makes it abundantly clear that while the commencement of those proceedings and their pursuit up to this point in time was not in itself an abuse of the processes of the Court I am satisfied that to allow the proceedings to continue by adjourning them yet again to facilitate the plaintiff would amount to an abuse by the plaintiff of the processes of the Court and would perpetrate an injustice to the defendants The plaintiff has given no explanation for his non appearance today in court and I take that into account in regarding his behaviour as constituting an abuse of the processes of the Court and an attempt to frustrate the ultimate hearing of this case and that is an unfairness to the defendants which I am not prepared to permit to continue So I will dismiss the plaintiffs claim and make an order for costs against the plaintiff in favour of the defendants and if the plaintiff had been here I would have had an opportunity of inquiring from his what his attitude was to the application being made by his new legal team to come off record prior to my making this order for dismissal He is not here and I appreciate that a solicitor who is representing a party whose case is being dismissed might wish to bring an application to come off record before that order is made but I have outlined in this brief statement of my reasons the sequence of events and I m completely satisfied that the present legal team should not be in any way prejudiced by the fact that they don t have an opportunity prior to this order for dismissal being made to formally serve a notice of motion under order 7 I think it is or the relevant rule to come off record It s not necessary that the order be made before I make my order for dismissal and obviously once I have dismissed the proceedings obviously there s no opportunity to come off record thereafter but I wont say any more about it than that but perhaps my comments might assist in some way at any later stage if necessary so I make that order to dismiss and costs to the defendants Amended Notice of Appeal 3 The appellant filed a notice of appeal and then pursuant to the order of this Court on the 23rd November 2012 he filed an amended notice of appeal The appellant set out twelve specific grounds of appeal Submissions 4 Submissions were filed on behalf of the appellant and the Court received also oral submissions on his behalf 5 Stephen Byrne B L made eloquent oral submissions on behalf of the appellant traversed the events in July 2011 and October 2011 and argued that the learned High Court judge should have given the appellant one

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/498c4ab598b6269f80257c1a004c5d21?OpenDocument (2016-02-09)
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