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  • 1489 Finlay C J stated in Murphy v Minister for Defence at 164 I am accordingly satisfied that the principles applicable are as follows 1 The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial 2 The evidence must be such that if given it would probably have an important influence on the result of the case though it need not be decisive 3 The evidence must be such as is presumably to be believed or in other words it must be apparently credible though it need not be incontrovertible These principles have been applied in Smyth v Tunney 1996 1 I L R M 219 In re Greendale Developments Ltd In Liquidation No 2 1998 1 I R 8 Allied Irish Coal Supplies Ltd v Powell Duffryn Intl Fuels Ltd 1998 2 I R 519 and McGrath v Irish Ispat Ltd in liquidation 3 I R 261 There are good reasons for the principles regarding the admission of new evidence which was available at the time of the High Court trial to this Court Most recently in Emerald Meats Ltd v Minister for Agriculture Ireland and the Attorney General IESC 48 O Donnell J stated at paragraph 36 The rules on the admission of fresh evidence on an appeal are quite strict This is as it should be There are very few cases in which the losing side does not regret that different witnesses were called evidence given or points made either in cross examination or in submission But a trial is not a laboratory experiment where one element can be substituted and all other elements maintained and a different outcome obtained It is important that parties are aware of the finality of litigation and bring forward their best case for adjudication Cases develop organically and unpredictably One of the benefits which litigation brings at some cost is certainty A party may reasonably dispute the merits of a conclusion but cannot doubt that it is a conclusion The court must make its decision on the evidence and case advanced on the day or in this case over the 17 days It is partly for this reason that the rules and practice of the courts go to such elaborate lengths to attempt to ensure that both sides are fairly apprised of what is in dispute and have an adequate opportunity to prepare for the litigation It is also why appellate courts have developed rigorous tests on applications to admit fresh evidence There are few cases which in hindsight could not be rerun with different witnesses evidence arguments or advocates but to consider that such a course is in the interests of justice is to engage in the delusion that endless litigation is a desirable rather than a tormented state Decision 19 I have read carefully the papers filed on behalf of the appellant and the respondent and have had the benefit of oral submissions by the appellant and counsel for the respondent 20 I apply the law to the facts of this case Thus the first test to be applied is whether the evidence sought to be adduced was in existence at the time of the trial but could not have been discovered with the exercise of reasonable diligence 21 I am satisfied that this test has not been met and so according to law is not new evidence Rather it is evidence that the appellant had prior to the hearing of the High Court in these proceedings Indeed the appellant did not seriously contest that he had this evidence Consequently the appellant fails on his motion on this first ground 22 In addition it is clear also that the documents are irrelevant to the appeal because the appellant s claim based on a plenary summons of the 10th February 2000 is against the respondent in relation to alleged acts in April 1989 and not the solicitors Kent Carty who had acted for the appellant at the time relevant to the drawing up of terms of settlement of the nuisance action 23 The cheque requisition of the 3rd March 1987 originated from Kent Carty and was disclosed to the appellant in previous litigation in 1990 Ms Madigan was a solicitor of Kent Carty and is now sought to be further examined in respect of the cheque requisition The cheque was available to the appellant and was not relevant to these proceedings Even assuming for a moment that the appellant s allegation about the cheque was correct it still fails both limbs of the Murphy test Furthermore it should be said that the appellant s allegation about the cheque was precisely that an allegation it was not investigated at the trial and cannot be an issue in this appeal between the parties 24 In re Greendale Developments Ltd In Liquidation No 2 1998 1 I R 8 at 30 to 31 Keane J said Altogether apart from that consideration it is clear that the documents exhibited with the first respondent s affidavit are not new evidence to which the principles in Murphy v Minister for Defence apply Evidence in that context connotes evidence of facts relevant to the issues in the action which would have had an important influence on the result and which was not available to the court of trial The Court has been referred to no such evidence on this application Assuming that some of these documents could have been used in the cross examination of the liquidator or Mr Burgess in order to demonstrate alleged inconsistencies between their evidence and inferences allegedly to be drawn from the documents that does not make them evidence in the sense to which I have referred The law is thus stated by Holroyd Pearce L J in Meek v Fleming 1961 2 Q B 366 at p 377 This court is rightly loth to order a new trial on the ground of fresh evidence Interest reipublicae ut sit finis litium The cases show that this court has given great weight to that maxim There would be a constant succession of re trials if judgments were to be set aside merely because something fresh that might have been material has come to light Having referred to the principles which are applied in determining whether such evidence should be admitted subsequently adopted by this Court in Murphy v Minister for Defence 1991 2 I R 161 he went on at p 378 Where however the fresh evidence does not relate directly to an issue but is merely evidence as to the credibility of an important witness this court applies a stricter test It will only allow its admission if ever where per Tucker L J in Braddock v Tillotson s Newspapers Limited 1950 1 K B 47 the evidence is of such a nature and the circumstances of the case are such that no reasonable jury could be expected to act on the evidence of the witness whose character has been called in question or per Cohen L J where the court is satisfied that the additional evidence must have led a reasonable jury to a different conclusion from that actually arrived at in the case The decision in Meek v Fleming 1961 2 Q B 366 also made it clear that a further exception to the rule arises where as happened in that case the court of trial is deliberately misled in a material matter I am satisfied that what is described as the new evidence does not of itself establish any facts relevant to the issues at the trial which would have had an important influence on the case At best the documents could have been used in cross examination to test the credibility of witnesses As such its admissibility at this stage must be determined by reference to the stricter tests referred to in Meek v Fleming It could not be said in my view with any plausibility that the production of this additional evidence must have led the trial judge to a different conclusion on the facts from those actually arrived at by him in this case I am accordingly satisfied that the application to adduce new evidence must be refused 25 The Supreme Court in Smyth v Tunney 1996 1 I L R M 219 also considered Meek v Fleming and distinguished the case before it on the facts 26 Applying the settled law to the application to have Ms Pamela Madigan further examined I would refuse the application in all the circumstances of the case 27 The appellant s allegation against Mr Clancy and the issue concerning an admission of negligence and other litigation is not connected to the respondent in this case and has been considered by other courts and this Court previously Conclusion 28 In conclusion for the reasons given I would refuse to admit new evidence in this appeal I would also refuse to order that Ms Pamela Madigan be further cross examined 29 In the interests of justice I would allow an extension of time to the appellant to file books of appeal and a certificate of readiness the time to be extended to the 28th January 2013 The Supreme Court Appeal No 085 2012 Denham C J O Donnell J MacMenamin J Between Michael Colin Geoffrey McMullen Plaintiff Appellant and Giles J Kennedy Practising under the style and title of Giles J Kennedy Co Solicitors Defendant Respondent Judgment delivered on the 15th November 2012 by Denham C J 1 Michael Colin Geoffrey McMullen the plaintiff appellant referred to as the appellant has brought a notice of motion before the Court seeking inter alia i Admission of new evidence in his appeal from the decision of the High Court Birmingham J dated the 6th February 2012 ii An order that Ms Pamela Madigan a solicitor of Kent Carty be further examined and iii An extension of time to file books of appeal and certificate of readiness as ordered on the 8th June 2012 when the Court granted a stay on the order of the High Court conditional on the appellant filing books of appeal and certificate of readiness within four weeks i e by the 6th July 2012 2 The present proceedings arise from earlier litigation concerning negligence suits against the appellant s legal representatives regarding a failure of terms of settlement in a nuisance action against another party to include liberty to re enter the matter The appellant s claim contained in a plenary summons dated the 10th February 2000 against Giles J Kennedy practising under the style and title of Giles J Kennedy Co Solicitor the defendant respondent referred to as the respondent is that on or about the 28th day of April 1989 the respondent in the full knowledge of the implications and consequences of his actions did use and employ undue influence improper incentives and coercion to induce Mr Noel A E Clancy S C to collaborate and undertake to give Evidence without reference to Privilege in the Action entitled Michael Colin Geoffrey McMullen Plaintiff v Hugh A Carty Others Practising as Kent Carty and Co of 48 Parnell Square Dublin 1 to the complete detriment of his Lay Client s position in general and particular which conspiracy arranged by the respondent was successful in defeating a well set out and just Complaint The appellant filed an affidavit which was deposed on the 2nd July 2012 In this affidavit the appellant referred to facts relating to this lengthy litigation i He referred to the nuisance action being settled before Costello J in July 1985 with a consent for parties to have liberty to apply ii he stated that an application was made to re enter the matter before Costello J in 1987 and was struck out iii he referred to Ms Madigan s evidence for the respondent before Birmingham J in January 2012 he deposed Ms Madigan s evidence was that immediately after Mr Justice Costello refused to re enter the action senior counsel admitted in her presence and in the presence of your Deponent that he was entirely responsible for this debacle She stated that your Deponent was fully aware of where full responsibility rested iv the appellant stated that this version had at all times been disputed by him The appellant addressed the giving of evidence by Ms Madigan in the High Court in January 2012 v He deposed that over the years he has accumulated thousands of documents in many crates and boxes When in 1994 he finally obtained his files from Kent Carty he wrote to complain that they were in a terrible mess This is his Exhibit B vi He returned again to the issue of his senior counsel Mr Clancy S C stating Notwithstanding in the search for records which would rebut the unhelpful conclusions of Mr Justice Birmingham a slender document emerged showing that on March 3rd 1987 just 3½ weeks post the failed attempt by Kent Carty to re enter the nuisance action for which they have fully and repeatedly blamed Mr Clancy and by extension your Deponent for instructing Mr Clancy whom Ms Madigan did not trust Pam completed the said Requisition Document for the issue of a cheque in favour of Mr Clancy in the sum of IR 2 000 two thousand Exhibit C vii the deponent referred to the 1986 ill fated notice of re entry viii reference was then made to Mr Clancy s visit to America correspondence over this visit is Exhibit D ix the appellant then stated Upon receipt of the files from Kent Carty under the terms of the Insurance Policy this Defendant Giles J Kennedy would have been fully aware that he needed the Co operation of Mr Clancy to verify the Defence which was filed for Kent Carty The Action McMullen v Kent Carty 1988 6218 P Mr Kennedy took full advantage of the funds given to Mr Clancy in March 1987 as the cheque requisition was contained in the papers as it was clear that Mr Clancy s loyalty had been compromised and the 2000 together with the trip to America would go on to ensure that your Deponent s Negligence Claims could be defeated with Mr Clancy s extra ordinary Evidence which extended to the abortive Notice of Re Entry 11th February 1987 for which it is not disputed that Kent Carty sought no fees setting himself against his Client your Deponent herein The repercussions from this have never ceased He continued At the time when your Deponent s action in Negligence against Kent Carty came to Trial in 1992 3 Messrs Collins Crowley who had carriage of the Claims were not aware of the payment to Mr Clancy requisitioned on March 3rd 1987 by Ms Madigan However this Defendant Giles J Kennedy had been handed your Deponent files containing the said Requisition and as stated these files were obtained by the Plaintiff only after Litigation On May 2nd 1988 Mr Justice Costello made an Order for Kent Carty to produce a Bill and the only relevant page leaves the whole of February 1987 without a single entry in the Matter of the Nuisance Action against the Charleville Estate Company and the pursuant entry for Mr Clancy in March 1987 leaves a blank after the pound sign These copy Documents the order is a poor copy are referred to as Exhibit E signed herewith He submitted THEREFORE I Michael McMullen submit the absolute necessity of the inclusion of the Exhibits attached with this Affidavit as compelling Evidence that Matters were not as portrayed to Mr Justice Birmingham in January 2012 and that the arrangement with Mr Clancy began in March 1987 when he took the money even against his own assurances to his Lay Client and once his position was compromised provided this Defendant leverage which he extended to secure defeat of your Deponent s well founded and proper Actions 3 An affidavit was sworn by Orlaith Byrne on behalf of the respondent on the 9th July 2012 and was before the Court on this motion 4 The appellant delivered a replying affidavit on the 24th July 2012 which I have also considered carefully 5 On the 6th July 2012 the appellant asked for an adjournment because of the formation of the Court The matter was adjourned to the 13th July 2012 when the appellant informed the Court that he had received the respondent s replying affidavit the previous day and that he needed time to reply The matter was adjourned to the 27th July 2012 Owing to the formation of the Court on that date the matter was adjourned to the 12th October 2012 6 This matter was heard on the 12th October 2012 7 The appellant seeks liberty to admit documents which he argued constituted new evidence These documents are the exhibits to the appellant s affidavit as outlined above and include a correspondence between the appellant and Kent Carty Solicitors and dated between June and July 1987 b correspondence between the appellant and Kent Carty Solicitors and the appellant and Collins Crowley dated February and June 1994 c a cheque requisition document dated the 3rd March 1987 d correspondence to and from Noel Clancy S C and dated between July 1985 and March 1987 e an order of Costello J in proceedings entitled Kent Carty and Company v Michael Colin Geoffrey McMullen record number 1988 152 SP made on the 2nd May 1988 requiring a bill of costs to be served on the defendant and a one page extract of a bill of costs prepared on behalf of Kent Carty Solicitors As stated previously the appellant also seeks an order permitting the further examination of Ms Pamela Madigan under Order 58 rule 8 of the Rules of the Superior Courts 8 The respondent disputed that any of the documentation sought

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  • default Andrew Smith J noted that gross negligence had not been recognised in English law as a concept distinct from civil negligence He went on to state nonetheless that The relevant question is not whether generally gross negligence is a familiar concept in English law but the meaning of the expression in these paragraphs of the terms and conditions 138 I do not need to describe the particular clauses which were being interpreted in that case It suffices to note that the learned judge saw that the agreement intended that there be a distinction between negligence and gross negligence though he accepted that this was one of degree and not of kind 139 I am persuaded that an agreement such as the present intentionally establishes a distinction between ordinary negligence and gross negligence Any liability of the Foundation is to be limited in accordance with Clause 25 unless the plaintiff can show gross negligence 140 It is less easy to define the difference between negligence and gross negligence The plaintiff does not need to prove negligence at all to succeed in a claim based on breach of contract He may recover damages subject to the limitation or cap To go beyond that he must show something more than breach of contract The corollary of the introduction of the notion of negligence into the contract would appear to be that the Foundation accepts that it may be liable for negligence in and about the performance of its contractual obligations or the exercise of its contractual rights For present purposes the consequence is that the Foundation may be liable for gross negligence in and about the exercise of its right to terminate the agreement Clarke J settled on a degree of negligence where whatever duty of care may be involved has not been met by a significant margin At a later point he proposed that the circumstances in which the breach took place should be such that there was not merely in breach but that the defendant was significantly careless as to the performance of its obligations 141 The difficult question is how to define the degree of fault Some of the earlier dicta we have seen suggest that this is so difficult that no meaningful distinction can be made Where the parties have used a term in a contract which affects their relations and specifically the circumstances of the liability of one party to the other the courts should make an effort to find a solution Clarke J adopted the term significant or significantly as a type of quantitative yardstick and I cannot readily see a more appropriate measure I do not see any reason to go further in assisting a defaulting party to limit what would otherwise have been its liability at law It should be borne in mind that the plaintiff does not as a matter of the general law need to establish negligence at all in order to prove breach of contract except in cases where the breach of contract alleged consists in breach of a duty of care Thus faced with Clause 25 the plaintiff must prove negligence and that the negligence amounted to a significant degree to a breach of that party s duty to the other party under the contract 142 In my view therefore Clause 25 allows the Foundation to limit its liability unless the Dubai company can prove that it has to a significant extent been negligent in and about the act of breach of contract which is alleged namely termination of the agreement 143 Based on that test it is now necessary to consider the grounds on which the learned trial judge found in favour of the Dubai company that the Foundation had been guilty of gross negligence He made the relevant finding at paragraph 8 11 of his judgment in the following terms What happened next is however potentially in a different category In effect a deal was done with TVTC at a time when the legal relationship between the Foundation and the Dubai company remained in full force the Cure Notice had not even been served TVTC was kept very fully aware of the steps being taken by the Foundation That action by the Foundation removed any possibility in practise of matters being resolved between TAM and TVTC It seems to me that those actions also need to seen in the context of the fact that the Foundation was well aware at the relevant time that there was in substance a commercial dispute between the plaintiffs and TVTC in which TVTC was attempting to leverage additional payments arising out of the ICDL programme in Saudi Arabia This latter point is also relevant to the situation which pertained when at least a credible basis was presented to the Foundation for the view that TVTC s assertion as to the scope of its licensing entitlement was incorrect The Foundation simply had an assertion by an interested party albeit a governmental body which that party was unwilling to back up by appropriate warranties or the like despite being asked placed against an at least credible view of Saudi law from an independent and reputable law firm 144 There appear to be four principal components of that finding 1 That the Foundation in effect did a deal with TVTC at a time when the agreement between the Dubai company and the Foundation was still in full force and effect 2 The Foundation kept TVTC fully informed of the steps it was taking in respect of its agreement with the Dubai company which removed any realistic possibility of resolution of the dispute between TAM and TVTC 3 A view which was at least credible was presented to the Foundation that TVTC s view of its licensing powers was incorrect 4 The Foundation accepted the assertion of TVTC an interested party against the view of an independent and reputable Saudi law firm 145 The Foundation makes the following principal complaints about these findings Firstly it says that there was no evidence that any concluded agreement was reached at the meeting of Mr O Sullivan of the defendant and Dr Saleh of TVTC when they met on 10th February 2010 However the learned trial judge did not find that there was a concluded agreement Secondly it is complained that the learned trial judge made no reference to certain evidence said to be undisputed that Mr Al Bawardi of the plaintiffs had been prepared in negotiations to agree a complete restructuring of the arrangements with the defendant and TVTC with the first plaintiff surrendering its contract with the defendant and entering into an arrangement whereby TVTC would take the licence from the defendant Thirdly it is claimed that there was no evidence that TVTC was attempting to leverage additional payments out of the ICDL program in KSA Fourthly the Foundation deals in some detail with the finding that the Foundation had placed reliance on TVTC s own statements as an interested party of its legal powers Some of the points made are that TAM did not itself challenge TVTC s statements though under Clause 14 1 of the agreement that was its sole responsibility and that the opinion obtained by the plaintiffs from a Saudi Arabian law firm was obtained on the incorrect basis that TAM was not providing training 146 In order to assess the correctness of the findings of the learned trial judge regarding gross negligence I propose to summarise at the risk of some repetition the basic facts regarding the four essential points made by the learned trial judge 147 The narrative really commences at the end of 2009 or the beginning of 2010 It is important to emphasise that at that time the agreement was still in force The Dubai company was still the licensee of the Foundation and TAM was its sub licensee Mr O Sullivan acknowledged on 11th January that the progress of ICDL in Saudi Arabia had been very positive over the past two years and in evidence said that the plaintiffs were well regarded highly regarded 148 As early as 10th January Mr Al Bawardi informed the Foundation in some detail of the plaintiffs then current difficulties with TVTC which were clearly very serious He stated that while TVTC was an important organisation it had overstated a number of points Specifically he said that TVTC s role was confined to its own centres and to private centres which became of course the nub of the dispute At this time Mr Al Bawardi warned Mr O Sullivan of the risks of travelling to KSA to meet Dr Saleh of TVTC He warned that he would be put under a lot of pressure and that TVTC wanted an excuse to dump the Dubai company Mr O Sullivan was naturally extremely concerned that the disputes which had led to such a sharp deterioration in relations between TAM and TVTC might jeopardise the entire programme in KSA In all these circumstances the learned trial judge found that the decision of Mr O Sullivan to travel to KSA did not even com close to amounting to gross negligence 149 In the period immediately before Mr O Sullivan s trip to KSA he received a number of emails from Dr Saleh expressed in extremely strong terms alleging multiple breaches of contract by TAM complaining of the performance of the company and saying that TVTC would not tolerate these breaches or the unlawful operation of the company TVTC repeatedly stated that TAM had no licence from the KSA government to operate in the Kingdom It sought direct contact with the Foundation without other party s involvement 150 However it was what then happened which became material specifically the finding that Mr O Sullivan had in effect done a deal with TVTC at a time when the legal relationship between the Foundation and the Dubai company remained in full force I have already pointed out that the learned trial judge did not find that a concluded agreement was reached The evidence justifying the finding of a deal is mainly contained in an email from Mr O Sullivan to Mr Al Bawardi of 10th February the date of his meeting with Dr Saleh Mr O Sullivan recorded that he had been informed of the unhappiness of TVTC with the performance of TAM and of its threat to formally withdraw their support from the Dubai company He said that the Foundation could not have a situation where the Dubai company was not approved by TVTC TVTC would continue he said only on the basis that its role and authority was recognised and that it was given control over the programme Moreover he said that they TVTC wanted to be the licensee and that it could easily perform all the duties and responsibilities of the Licensee Dr Saleh he said had insisted that the Foundation agree to a roadmap for the future before he left or he Dr Saleh would have no option but to shut the programme down 151 Mr O Sullivan appended to that email a summary of the proposals apparently the road map proposed at the meeting They involved TVTC having full control of the implementation of the Dubai company in KSA and becoming the licensee 152 On 30th March 2010 Mr O Sullivan informed Dr Saleh by email of the fact that that it had sent the notice to TAM on 23rd February giving 60 days notice of termination unless matters are resolved He suggested that allowing a few days for termination we could need to terminate during last week of April On 26th April he sent another email stating that the Foundation s lawyers had requested that it formalise our current position in the attached short agreement The attached draft document proposed acknowledgement of TVTC s responsibility for training in KSA statements by TVTC that TAM was operating illegally and that it had breached terms and conditions of its TVTC contract and similar matters 153 Although the cure notice had been served the agreement had not yet been terminated The learned judge as already mentioned held that a second notice was required The Foundation was aware of this and openly discussed its intentions with TVTC As the learned judge found the Foundation shared with TVTC the information about the cure notice itself 154 Part of the learned trial judge s findings of which the Foundations complains is at paragraph 3 17 of his judgment that in December 2009 TAM was in discussions with TVTC regarding the financial terms of their agreement in particular in light of the Al Yasser Project which involved the provision of the ICDL programme to all government employees across a number Saudi Arabian governmental ministries He continued TVTC had secured this contract which required it to train the Al Yasser project s participants using ICDL s standards TVTC were seeking 20 of TAM s total revenues and to hold the ICDL licence for Saudi Arabia in exchange for which they proposed to allow TAM to operate the Programme as a sub licensee TAM indicated that it was not minded to significantly deviate from its standard pricing model and as a result relations between the two parties further deteriorated 155 The Foundation s complaint appears to be that the learned judge s finding did not justify his apparent view that there was some improper desire to obtain payments to which TVTC was not entitled In context it appears to me that the finding was well justified In fact there was further reference in correspondence to complaints by TVTC that TAM was not paying to it certain discounts or royalties to which it claimed to be entitled 156 The final point is that the Foundation accepted TVTC s view about its powers It was clear even before Mr O Sullivan s trip to KSA that TAM disputed TVTC s statements of its position As early as 2nd March 2010 the Foundation was on notice from a reputable London firm of solicitors Squire Saunders that TVTC s view was contested by a Saudi law firm The response of the Foundation was not to seek advice of its own but as was stated in the letter of 5th March 2010 from A L Goodbody that they were entitled to rely on statements of law provided by a Government authority in the jurisdiction 157 I have no doubt set out this history at unnecessary length but I wish to show that in my view the learned judge was fully justified in the findings he made and which I have summarised under four headings The two outstanding background facts are that firstly the agreement between the Dubai company and the Foundation was still in full force and effect and secondly that as the Foundation was fully aware TVTC was engaged in a hostile campaign against TAM and any continued activity by it in KSA In those circumstances the Foundation entered detailed direct discussions with TVTC about the termination of its own agreement with TAM s licensor and about a replacement agreement or road map Clarke J was entitled to conclude that the Foundation had effectively done a deal with TVTC It kept TVTC fully informed about the state of its relations with the plaintiffs to the extent of informing TVTC about the service of the cure notice and its intentions concerning termination of the agreement The learned trial judge was entitled to conclude that all of this was bound to undermine the position of TAM and to make it very unlikely that there could be any resolution of its dispute with TAM It accepted without question TVTC s statements concerning its own powers ignoring even reputable views to the contrary I might add that the question of whether Mr Al Bawardi had been willing to contemplate restructured contractual relationships with TVTC does not affect these conclusions If anything they serve to underline the difficult position of both plaintiffs 158 All of these actions failed to take account of the Foundation s existing contractual relationships The learned trial judge was entitled to find the Foundation guilty of gross negligence with the result that it lost the benefit of the limitation on liability provided by Clause 25 159 I then return to the question of wilful act I am satisfied that the Court may consider whether there was wilful default even though the Dubai company has not served a notice to vary Order 58 rule 10 provides that it shall not under any circumstances be necessary for a person served with notice of appeal to give notice by way of cross appeal but if such person intends upon the hearing of the appeal to contend that the judgment or order appealed from should be varied The question of wilful default was fully argued in the High Court to the extent that Clarke J cited see paragraph 56 above the authorities upon which the Dubai company relied He decided the issue under clause 25 in favour of that company under the heading of gross negligence and concluded that the Foundation was not entitled to rely on the limitation of damages The Dubai company wishes to uphold that finding based on the additional argument of wilful default I believe that this situation is covered by the decision of Keane C J in Ahmed v The Medical Council 2003 4 I R 302 160 The service of the purported notice of termination of the agreement on 23rd February was unquestionably an intentional act on the part of the Foundation It amounted to a breach of contract firstly because the conditions did not exist for the valid termination of the agreement on the claimed ground the absence of a licence from TVTC and secondly because it wrongly purported to terminate the agreement in part only For the reasons already given it is unnecessary to introduce the additional elements considered under the heading of gross negligence Once it is established that the purported termination was a breach of contract on the part of the Foundation and that the act was intentional as axiomatically it was there was a wilful act On that ground alone the Foundation forfeited any right to rely on the limitation of damage 161 For these reasons I would dismiss the appeal on all grounds THE SUPREME COURT Record No 2010 10396P Hardiman J Fennelly J O Donnell J McKechnie J MacMenamin J BETWEEN ICDL GCC FOUNDATION FZ LLC AND SHARIKAT TAKNIAYAT ALMAAREFA LIL TAALIM AL MUTATWER AL MOHADODA TRADING AS ICDL SAUDI ARABIA PLAINTIFFS RESPONDENTS AND THE EUROPEAN COMPUTER DRIVING LICENCE FOUNDATION LIMITED DEFENDANT APPELLANT JUDGMENT of Mr Justice Fennelly delivered the 14th day of November 2012 1 This is an appeal by the defendant from an order of the High Court Clarke J made in the Commercial List on the 20th September 2011 The trial judge found that a contract between the 1st named plaintiff and the defendant was not validly terminated and held that the 1st named plaintiff was entitled to damages for breach of contract He held that the 2nd named plaintiff was entitled to damages in tort to be assessed in accordance with the law of the Kingdom of Saudi Arabia 2 The proceedings concern access to the private training sector in the Kingdom of Saudi Arabia KSA allegedly without the consent of Technical and Vocational Training Corporation hereinafter TVTC the relevant state authority in KSA 3 The parties have helpfully formulated a list of what are agreed to be the issues on the appeal The facts are very fully recounted in the High Court judgment There is little or no controversy about the essential primary facts in the ordinary sense There are however some disputes about inferences drawn from the facts There is a central disagreement relating to the findings in respect of the law of the Kingdom of Saudi Arabia and in particular about the way in which the learned judge treated the evidence of certain witnesses There are also some disputes concerning the factual basis of the findings of gross negligence made against the Foundation I will set out an abbreviated account of the relevant facts The facts 4 The appellant which like the learned trial judge I will describe as the Foundation is a non profit entity an Irish registered company limited by guarantee not having a share capital Its members are computer societies or associations of IT professionals one from each of the 28 European countries who are also members of the Council of European Professional Informatics Societies Its Chief Executive is Mr Damien O Sullivan The Foundation provides the ECDL or European Computer Driving Licence designed to promote skills and literacy in Information Technology Its programme has three components They are the issue of a skills card a card which records the enrolment and progress of the candidate through the course the provision of course materials in accordance with a syllabus a testing base or solution which is essentially the examination questions and process also generally conducted online and the award of a certificate It provides an internationally recognised method of certification of skills in information technology Outside Europe the programme is branded as the International Computer Driving Licence It was launched in 1999 The Foundation licenses individual companies or bodies to provide the programme in different countries or regions 5 The subject matter of the present proceedings is a licensing agreement in relation to the seven countries of the Gulf Co operation Council most importantly the KSA upon which the entire dispute centres 6 The first named plaintiff respondent hereinafter the Dubai company is a body corporate which has its headquarters in Dubai United Arab Emirates The second named plaintiff respondent hereinafter TAM is a company incorporated in Riyadh KSA It trades as ICDL Saudi Arabia Mr Marwan Al Bawardi is the Chief Executive Officer of both plaintiffs TAM has also traded under the name Element K as a provider of IT training materials and e learning solutions serving a variety of organisations over a period in excess of 20 years both in the Middle East and elsewhere 7 In late 2002 TAM approached the Foundation with a view to introducing its programme to KSA 8 TAM had a close working relationship with a Saudi entity the Technical and Vocational Training Corporation TVTC whose behaviour became central to the entire dispute although it is not a party to the action TVTC is a governmental body charged with responsibility for vocational education and training in KSA The precise nature and extent of TVTC s legal power and responsibility became the central bone of contention in the litigation The purported termination by the Foundation of the licence agreement which is the subject matter of the action was based on a view of TVTC s powers It will be necessary to return to it in some detail 9 The agreement hereinafter the licence agreement which is the subject matter of the present litigation is one whereby the Foundation licensed the Dubai company for seven countries of the Gulf Co operation Council It is dated 25th April 2006 The legal issues on this appeal are all concerned with the agreement between the Foundation and the Dubai company 10 The learned trial judge explains the rather more complex history and background at paragraph 3 of his judgment From about 2003 multiple possible agreements or relationships were considered or entered into As already stated TAM had an established relationship with TVTC At one point it was envisaged that TVTC would become the licensee for the programme in KSA but this turned out not to be feasible because TVTC considered that as a governmental body it could not enter into certain proposed warranties or indemnities Next it was agreed that TAM would become the licensee Then TAM contemplated expanding into the Gulf region more generally The Dubai company was formed to facilitate that purpose That is why the Dubai company is the contracting company with the Foundation having the licence for the region with TAM operating as sub licensee to the Dubai company for KSA The terms of the sub licence largely replicate those of the Licence with some modifications In addition in 2003 TAM entered into a five year agreement with TVTC The terms and interpretation of that agreement was the basic cause of the breakdown of relations between those two parties and ultimately all round and which led in turn to this litigation Clarke J sets out many of the crucial terms in some detail For the purposes of this agreement it will suffice to refer to the disputes in general terms and as a matter of fact It should be noted that the licence agreement is between the Dubai company and the Foundation Although the relationship and disputes between TAM and TVTC form the essential factual background to the dispute the Foundation has no contractual relationship with either of those entities 11 Four different parties play important parts The Foundation as already stated licenses the Dubai company in respect of the designated territory consisting of seven countries including KSA named in Schedule 3 to the licence agreement The Dubai company separately licenses TAM for the programme in respect of KSA alone As already stated Mr Marwan Al Bawardi is the Chief Executive Officer of both They have a common interest and are co plaintiffs in the action TVTC because of its relationship with TAM its powerful position in KSA and its interest in the programme is a key actor though not a party to the action The Foundation is the owner of the programme in which all the other parties are interested 12 I propose to adopt the description by the learned trial judge of the breakdown between the Dubai company TAM on the one hand and TVTC which was as follows In December 2009 TAM was in discussions with TVTC regarding the financial terms of their agreement in particular in light of the Al Yasser Project which involved the provision of the Dubai company programme to all government employees across a number Saudi Arabian governmental ministries This project would have encompassed several hundred thousand candidates TVTC had secured this contract which required it to train the Al Yasser project s participants using the Dubai company s standards TVTC were seeking 20 of TAM s total revenues and to hold the the Dubai company licence for Saudi Arabia in exchange for which they proposed to allow TAM to operate the Programme as a sub licensee TAM indicated that it was not minded to significantly deviate from its standard pricing model and as a result relations between the two parties further deteriorated TAM had previously informed the Foundation of the difficulties in its relationship with TVTC in November 2009 At that time it was the plaintiffs view that it had developed its business to such an extent that they remained confident of its prospects even in circumstances where TVTC proved unreasonable 13 Relations between TAM and TVTC represented by Dr Saleh were at a very difficult stage in early 2010 Dr Saleh alleged multiple breaches of contract by TAM and claimed that TAM was operating without a licence He claimed that TVTC was entitled to a 20 discount in its sector and complained about TAM s prices He wrote by email to Mr O Sullivan on 14th January 2010 seeking his involvement to solve these problems Otherwise he threatened that TVTC would take all legal and lawful actions to protect its rights and the rights of other parties and would be forced to re evaluate the program s quality and accreditation and to introduce other options 14 Mr Al Bawardi believed that TVTC was unwilling to recognise TAM s role as national licensee for KSA He warned Mr O Sullivan that TVTC was overstating its position and claimed in particular that TVTC s role was confined to TVTC centres and to private training centres under its jurisdiction Mr Al Bawardi advised caution in dealing with Dr Saleh and specifically counselled against Mr O Sullivan travelling to meet him Mr O Sullivan was anxious that the dispute be resolved and believed that the Foundation could contribute to resolving these difficulties In an email of 27th January 2010 to Mr O Sullivan Dr Saleh restated TVTC s position in strong terms The TVTC as previously stated will not tolerate any delinquencies deceits breaches and violations of obligations terms and conditions in the Contract committed by TAM The TVTC will exercise in full force its legal and lawful rights and authority as the government body responsible for the quality assurance of the technical education and training Moreover the TVTC had built the relationship with the company on trust However after we discovered breaches and defaults in the Contract Agreement and problems of quality assurance TVTC started to investigate the issues Now after we have read your e mail and your understanding it is clear that there is misconduct as we have explained above The TVTC would like to confirm that we must contact directly without the other party s involvement Finally if action is not taken in due time TVTC will have no choice but to stop recognition of the program in Saudi Arabia 15 In these circumstances Mr O Sullivan travelled to KSA and met Dr Saleh on 10th February over the opposition of the plaintiffs He was informed that TVTC having failed to reach agreement with TAM were prepared to formally withdraw their support of ICDL and to disassociate TVTC from the programme He noted that TVTC were prepared to shut the programme down and said that the Foundation could not have a situation where the Dubai company was not approved by TVTC 16 By letter dated 13th February 2010 TVTC requested that TAM cease entering into new contracts maintaining that TAM did not hold the necessary permit from it so as to enable it to continue to do so It also wrote to the Foundation stating that it was the government body responsible for the awarding licensing and accreditation of training in KSA and that the second plaintiff was operating illegally Clarke J continued On the 31st May 2010 TVTC issued a letter to TAM directing that they stop the ICDL Programme on the grounds that they had not expressed seriousness in signing new agreement with TVTC and as such must stop all dealings related to this expired agreement and put an end to all test sessions TAM has initiated proceedings before the Saudi Arabian courts against TVTC seeking a number of reliefs namely the quashing of its decision to terminate the TVTC Agreement an order for specific performance of the TVTC Agreement and an order for compensation for all damages and losses suffered by TAM as a result of TVTC s actions 17 In short there were disputes between TAM and TVTC There were some complaints about quality though the Dubai company has said at the hearing of the appeal that they were trivial There was a dispute about TVTC s claim to be entitled under arrangements between those two parties to 20 of TAM revenues in respect of parts of the business The rights and wrongs of these disputes are not in themselves capable of resolution by or even a matter for the Irish courts TVTC is not a party to the action and as Clarke J said there are proceedings between the parties in KSA It appears however that the Foundation had no reason to be dissatisfied with the performance of TAM as licensee of the Dubai company Certainly TAM maintains that TVTC was promoting the dispute as a means of putting a stop to its business The significance of the dispute is that it led TVTC to terminate all relations with TAM and to allege rightly or wrongly that TAM was operating unlawfully in KSA because it did not have the required licenses or consents to do so from TVTC TVTC claimed to have the exclusive power of licensing under Saudi law That contention led in turn to the decision by the Foundation to purport to terminate the licence agreement 18 On 13th February 2010 Dr Saleh Alamr Vice Governor of TVTC wrote to Mr O Sullivan expressing pleasure at their recent meeting and saying TVTC as previously mentioned in my emails and explained to you during our discussions will not tolerate any breaches and violations of obligations terms and conditions of its Contract with TAM TVTC will exercise in full force its legal and lawful rights and authority as the government body responsible for awarding licensing and accreditation of training in the Kingdom of Saudi Arabia I would like to inform you that due to the weak quality assurance measures and violations of the contract TVTC will not extend its contract with TAM Moreover since the contract with TAM is already expired We deem that TAM is illegally operating a training related program and awarding certifications in Saudi Arabia 19 On 23rd February 2010 the Foundation sent to the Dubai company the letter purporting to give notice of termination of the agreement which this case is principally about It was as follows We have been informed by the Vice Governor of TVTC a Government body in the Kingdom of Saudi Arabia that any operation by TAM of the ICDL certification program in Saudi Arabia without its consent is in breach of the law of the Kingdom of Saudi Arabia We have been informed that it is necessary for TAM to obtain a licence to do so from TVTC and that no current licence has been obtained or granted Accordingly we have no option but to rely on clause 14 1 of the Agreement which provides that you are required to obtain at your expense all licences permits and consents necessary for you to carry on business in the designated territory which includes Saudi Arabia Accordingly any operation of the ICDL certification program in Saudi Arabia by you without TVTC s consent is in breach of that clause and hence of the Agreement We therefore call upon you to rectify this breach within sixty 60 days of today s date Otherwise the Agreement and consequently any sub licence will terminate in respect of Saudi Arabia in accordance with clause 16 1 4 We trust that you will cooperate with us and the Government of Saudi Arabia and acknowledge that this request is necessary as a result of the terms of the Agreement and the licence requirements and legal position in Saudi Arabia 20 That letter is described as the cure letter because it calls on the opposing party to remedy an alleged breach of contract within a specified time The Dubai company claims that the letter did not validly terminate the agreement principally because it was based on an incorrect view of its obligations under the law of KSA At a later point 19th August 2010 the Foundation by its solicitors wrote to the Dubai company purporting to treat the licence agreement as having been terminated at the end of sixty days from the date of the cure letter The Dubai company also disputes the validity of that act 21 By letter dated 2nd March 2010 a London firm of solicitors Squire Saunders wrote to Mr O Sullivan on behalf of the Dubai company They stated that they had been instructed by their client and were advised by its local Saudi Arabian lawyers that TAM was not operating illegally It quoted the correspondent in KSA of Freshfields LLP as having confirmed to them that on its understanding since TAM does not operate a training programme or training centre but is rather an international standards and certification body no permit or licence is required It said that there was no question of TAM operating illegally The solicitors went on to complain that the Foundation was purporting to require their client to remedy a breach and to immediately suspend services based upon unsubstantiated

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  • But the fact that if the Foundation had played its hand very skilfully it might have procured an agreement between TAM and TVTC cannot amount to negligence unless it can be said that it was under some sort of duty to do so This approach in any event seems to me to implicitly suggest that somehow the Foundation was obliged to take TAM s side in its dispute with TVTC and does not give sufficient weight to the difficulty facing the Foundation which on any view was that TAM had now got itself into a position where it had antagonised a body which undisputedly controlled 68 of the market for the ECDL product in a very important territory 19 The last two points relied upon by the plaintiffs can I think be taken together and are more difficult It is asserted that it was grossly negligent of the Foundation to proceed to purport to terminate the contract in circumstances where what was described as at least a credible view had been presented that TVTC s view of its licensing powers was incorrect This refers to the fact that on the 2nd March 2010 the Foundation had received correspondence from a London firm of solicitors Squires Saunders to the effect that TVTC s view of its powers was contested by a Saudi law firm It is quite correct that the response of the Foundation was not to seek advice of its own but to take the view as stated in the letter of response by Messrs A L Goodbody of the 5th March 2010 that the Foundation was entitled to rely upon the statements of law provided by a Government authority in the jurisdiction I have no doubt that seen in hindsight it was undoubtedly foolish of the Foundation to seek to terminate the plaintiffs contract without obtaining its own Saudi law advice or at least an indemnity from TVTC although there would still an interesting question as to whether although the Foundation would undoubtedly have acted carefully in obtaining the indemnity That would mean that it would able to rely on clause 25 1 if it wrongfully terminated the contact I would also be prepared to accept that in a straightforward case it would be negligent and probably grossly negligent for a party contemplating the termination of the contract on grounds that were contested to fail to seek legal advice on the lawfulness of any purported termination and all the more so if such advice would have been unequivocal However on any view this was not a straightforward case Indeed the question on which advice would have to be sought the entitlement of TVTC to licence TAM is undoubtedly the most difficult aspect of this case shrouded as it is in the complexity of seeking to understand from the perspective of an Irish court the Saudi legal structure and the place of TVTC therein I am therefore influenced by the fact that the sharp difference of opinion in this case even after a period for reflection and consideration demonstrates fairly clearly that had advice been sought it is very unlikely that it would have been clear cut still less that it would have confirmed the view put forward on behalf of the plaintiffs 20 Furthermore it is particularly significant that in their responding letter of the 5th of March Messrs A L Goodbody expressly sought sight of the legal opinion relied upon The response of Messrs Squires Saunders on the 11th March 2010 was decidedly curious It stated merely that Our client does not agree with the statement of law provided by TVTC and has engaged counsel to take the matter up directly with TVTC The letter did not expressly deal with the request to provide a copy of the opinion and seemed to avoid it Instead it attached a copy of TVTC s letter to our client dated 13th February 2010 together with our client s Saudi Arabian lawyers response dated the 11th March 2010 The letter from the Saudi Arabian lawyers to TVTC contained a statement that we would like to reassure you TVTC that our client ICDL Arabia is complying with all laws and regulations applicable in the Kingdom of Saudi Arabia and with all contracts related with governmental or private authorities and simply requesting that TVTC explain its contention that ICDL was in breach of its agreement and was practising without a legal permit This falls far short of a formal legal opinion that TVTC had no legal power to licence either TAM or the program Indeed a formal opinion was only provided after repeated requests and six months later in late August and after the letter from A L Goodbody s of the 19th August 2010 which the court found was a formal notification of termination Furthermore it was accepted in evidence that the plaintiff had never stated to TVTC in writing that they disputed the authority of TVTC The letter of the Saudi Arabian law firm referred to rather than disputing the authority of TVTC requested that TVTC clarify what activities were practised by ICDL without a permit It is also significant that it appears that the plaintiff took no step to have the matter determined in the Saudi Arabian courts Finally when the opinion came to hand with the letter of late August 2010 it is clear that it was based upon an understanding which was not consistent with the evidence or indeed with the basis upon which the trial judge for his part concluded with obvious difficulty that a licence from TVTC was not required The position was therefore very far removed from the clear cut situation where a legal opinion is provided by one side and legal advice though readily available is not sought by the other I accept that this is perhaps a difficult issue of judgment but particularly in circumstances where I am not at all convinced that any request for legal opinion would have provided any clear advice that TAM was not operating unlawfully I would conclude adopting the language of Mance J that although there were indeed significant misjudgments and shortcomings this is not such an exceptional case involving negligence of such grave a nature as to fall outside the intended sphere of immunity Finally in this regard I should say that I do not think that it is sufficient to conclude if this were the case that the learned trial judge was entitled to find the Foundation guilty of gross negligence It appears to me that this is essentially an issue of law for this court to decide on the facts found was the Foundation guilty of gross negligence In my view it was not Wilful Act 21 It is therefore necessary to consider the question of wilful act It is for my part significant that the trial judge did not come to any conclusion on this ground The first issue is to consider what was meant by the parties in adopting this phrase The essential question here is whether the term wilful act means no more than intentional in the sense that the act was voluntary In particular if the intention does not relate in any way to the breach of contract but merely to the act alleged to be such a breach then it will as Fennelly J observes be axiomatic that the purported termination that gave rise to the cause of action at least in specific performance was intentional and therefore a wilful act Unfortunately I cannot agree with this approach precisely because in most if not all cases it would lead to the automatic disapplication of the limitation clause 22 As already touched on above such an interpretation would make little sense of the clause Prima facie as observed by Mance J in The Hellespont Ardent the apparent intention of the clause is to provide for a general limitation on the liability save in exceptional circumstances However if wilful act is to be interpreted as meaning no more than the act giving rise to the cause of action is intentional then the vast majority of potential breaches of contract and other causes of action will fall within the exception and very little if anything will fall within the general clause If wilful act means no more than intentional act then the only thing not covered by that provision would be inadvertent or accidental or unintended acts and possibly failure to act although even then if a person deliberately intended to act for some reason giving rise to a cause of action it would not take much imagination to see that it could be plausibly argued to be a wilful act It is difficult to conceive of the scope of inadvertent or accidental actions as opposed to actions giving rise to inadvertent or accidental breaches but if such matters can be conceived of their scope is significantly narrowed when the clause is read as it must be in conjunction with the limitation as to gross negligence Furthermore even if assuming for the moment that there is a realistic distinction in fact between intentional acts and other types of acts which can give rise to a cause of action it is difficult to conceive of any sensible reason why the parties would wish to make such a distinction Once the act is shorn of any intention to breach the contract or knowledge of the possible consequences there is no sufficient distinction in logic or morality between an intentional act giving rise to an unintended breach of contract or other wrong and an accidental act giving rise to the same consequence and consequently no reason for the parties to severely limit damages in one case and not the other Accordingly it is for me a serious difficulty with the interpretation advanced by the plaintiffs that it offers no sensible distinction between those acts captured by the general limitation clause and those subject to the exception 23 Here a consideration of the phrase wilful act or gross negligence as a whole may be of some assistance Once it is accepted that gross negligence is a concept different from mere negligence then it also becomes clear that the distinction made is one of culpability It is clearly more reprehensible to be guilty of gross negligence which is a flagrant or obvious breach than mere negligence One might expect therefore that the same distinction is being made in introducing the concept of a wilful act and that what is conceived of is and exceptionally that the licensor may be guilty of conduct sufficiently reprehensible to justify this application of the limitation on damages which would otherwise apply 24 It is of course the case that when viewed in isolation the words wilful act can be understood as meaning no more than intentional voluntary or willed and not automatic inadvertent or accidental But those words have to be viewed in the context in which they are used It also carries a connotation of self will perversity and being headstrong and even obstinate Furthermore it is not merely a wilful act which is required to disapply the limitation contained in clause 25 1 it must be a wilful act which gives rise causes in the language of the clause to a cause of action The act in its wilful or intentional nature cannot be separated from the cause of action in this case an alleged breach of contract It is in my view clear that what must be intended or willed or be the subject of obstinacy is a breach of contract or other wrong giving rise to a cause of action arising out of the contract This is not only consistent with what I consider to be the natural meaning of the words but also the structure of the clause and with the limitation in clause 25 1 being disapplied only in exceptional circumstances The line which is drawn is a logical one and furthermore consistent with the distinction being made in the context of gross negligence In this way there is a continuum of the type of conduct which will lead to the limitation clause not being applied This conduct runs from intentional breach through headstrong conduct recklessness and gross negligence In each case the conduct must relate to the possibility of a breach of contract In this way the clause is being read as a consistent and coherent whole rather than by reference to dictionary or judicial definitions of individual words It will also be recalled that one of the difficulties with approaching the clause and looking at its individual components is that the concept of negligence is difficult to apply and almost illogical in the absence of a duty of care Negligence as Fennelly J observed in Glencar v Mayo County Council 2002 1 I R 84 at p 155 does not exist in the abstract the failure to exercise due care can only be established by reference to a recognised duty However if gross negligence is as Megaw J suggested in Shawinigan v Vokins akin to recklessness in a sense that as he said recklessness is gross carelessness it becomes more understandable The negligence gross carelessness or recklessness is to be understood in connection with the acts giving rise to the cause of action Thus in the case of a breach of contract which is after all the most obvious cause of action likely to arise in connection with the contract clause 25 will normally impose a limitation of 50 000 or ten percent of revenue whichever is lower unless the licensor has deliberately breached the contract or has been grossly careless as to whether his contract was a breach of contract or not This appears to me to be consistent with the contract as a whole Furthermore in the particular context of this case it appears to be that the words of Mance J in the Hellispont Arde nt are equally applicable here The evidence reveals significant misjudgements shortcomings and errors but it does not in my view involve a deliberate or obstinate breach or negligence so grave so as to fall outside the intended sphere of immunity 25 It remains to consider however whether this interpretation of the words wilful act is precluded by authority In this regard the plaintiff has relied on a number of cases Perhaps the most important of these is in re Young and Hartson s 1886 LR 31 Ch D 168 which was a vendor and purchaser summons The dictum of Bowen L J in the Court of Appeal has already been set out at paragraph 7 above In my view there is no reason to read that judgment as compelling an interpretation of the relevant conduct here namely wilful act giving rise to a cause of action as merely that the person is a free agent and that what has been done arises from the spontaneous action of his will There is a certain irony in this citation of what is merely a dictum in the judgment of Bowen LJ as somehow setting in stone the understanding of the word wilful even when used in a different textual and legal context since the passage quoted is immediately preceded by an express disavowal of the benefits of using one decision to define the meaning of the word for all future cases At p 174 of the report he said The term wilful default though one in common use in such contracts is not a terms of art and to pursue authorities with a view to defining for all time what is its meaning in a contract like this appears to me to press citation far beyond the point at which it ceases to be useful Default is purely relative term just like negligence The other authority relied on was Wheeler v New Merton Board Mills Ltd 1933 2 K B 669 There a young workman had been seriously injured in an industrial accident when clearing out a machine his arm was cut off between the elbow and the wrist Section 29 of the Workman s Compensation Act 1925 provided that the employer should not be liable in any proceedings except in case of such personal negligence or wilful act as aforesaid The evidence showed that although there was negligence it was the negligence of the foreman At this time contributory negligence the defence of volenti non fit injuria and the defence of common employment were all hurdles which a plaintiff had to surmount if he was to be successful Negligence of an employer was not enough and negligence of a co employee was positively fatal to a claim against the employer In such circumstances only the possibility of proof of wilful act offered the opportunity of recovering against the employer At first instance Talbot J at pp 677 and 678 said of the concept wilful act It is true that though wilful and intentional are synonymous wilful is more commonly used in modern speech of bad conduct or actions than of good though it does not necessarily connote blame see per Bowen L J in re Young and Hartson s contract but that is far from supporting the strange contention that wilful act in s 29 sub s 1 must be confined to something done with intent to injure In consequence the court was prepared to conclude that the provision of a dangerous machine with the intention that it should be used by the company s workmen was more properly described as an act than as negligence To the modern eye I think this would more naturally fall to be considered negligence than as a deliberate or intentional act and perhaps outside the constraints of the law as it stood in 1933 it might have been so understood That only illustrates the fact that this is a decision which must be understood in its time and particular legal context Accordingly I do not think it provides any useful guidance to the interpretation of a modern contract for the provision of computer services Accordingly I would conclude that the limitation provision in clause 25 1 applies and that the Foundation was not guilty of either gross negligence or wilful act and accordingly for my part I would allow the appeal on this point THE SUPREME COURT 389 11 Hardiman J Fennelly J O Donnell J McKechnie J MacMenamin J Between ICDL GCC FOUNDATION FZ LLC AND SHARIKAT TAKNIAYAT ALMAAREFA LIL TAALIM AL MUTATWER AL MOHADODA TRADING AS ICDL SAUDI ARABIA PLAINTIFFS RESPONDENTS AND THE EUROPEAN COMPUTER DRIVING LICENCE FOUNDATION LIMITED DEFENDANT APPELLANT Judgment of Mr Justice O Donnell delivered the 14th day of November 2012 1 This is an appeal from an interlocutory ruling in a commercial court case in which Clarke J in the High Court and Fennelly J in this court have delivered detailed judgments to the same effect These judgments will control the future conduct of this litigation and accordingly it is only necessary to express as briefly as possible my reasons for respectfully disagreeing with them on one of the issues in the case For that purpose I gratefully adopt the account of the facts and the issues contained in the judgment of Fennelly J which together with the judgment of Clarke J in the High Court sets out the full background to the matters now in dispute Approach to Interpretation of Contracts 2 I am in full agreement with the views expressed by Clarke J in his judgment in the High Court that the judgment of Geoghegan J in the Supreme Court in Analog Devices BV v Zurich Insurance Company 2005 1 IR 274 represents the law in Ireland approving as it does the well known passage from the judgment of Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society 1998 1 W L R 896 in the House of Lords I would respectfully endorse and adopt the statement by Lord Hoffman in full Paragraph 4 of that statement gives in my view helpful guidance in the approach to the interpretation of contracts In particular it seems to me that the following observation The meaning which a document or any other utterance would convey to a reasonable man is not the same thing as the meaning of its words The meaning of words is a matter of dictionaries and grammars the meaning of a document is what the parties using those words against the relevant background would reasonably have been understood to mean is not only correct but is a useful corrective to a tendency of lawyers which can often lead to a misinterpretation of the document I also agree that the principle of interpretation contra proferentem may usefully be applied not just to exemption clauses but to a contract in general but normally only as a last resort in the case of ambiguity and not as a general approach As has been observed the purpose of the principle is to resolve ambiguity not to create it In this case in my view it is not necessary to have resort to this principle to resolve the issues of interpretation The First Issue 3 The first issue was the central issue on the hearing of this appeal Much of the argument focussed on the meaning of the last sentence of clause 14 1 of the licence The licensee shall obtain at its own expense all licences permits and consents necessary for it to carry on its business in the Designated Territory The European Computer Driving Licence Foundation limited the Foundation sought to argue that this sentence was not limited to licence permits and consented that the absence of a licence would render the operation of the programme in Saudi Arabia unlawful as held by Clarke J Instead it was suggested that the clause had a broader meaning and covered agreements required to conduct the business as a matter of commercial and practical rather than legal necessity In this regard the Foundation pointed out that the Technical and Vocational Training Corporation TVTC controlled approximately 68 of the market since it had its own training centres and licensed private training centres Thus the agreement and on one view of the word the consent of TVTC was necessary if the second named plaintiff TAM was to conduct its business which involved the provision of training in private facilities including those controlled by TVTC It was also argued that this interpretation was reinforced when the sentence was read in the context of the clause as a whole The first sentence of the clause provided that the exercise of the licence granted to the licensee under the contract was subject to all applicable laws enactments regulations and other similar instruments in the Designated Territory and that the Licensee shall at all times be solely liable and responsible for such due observance and performance Accordingly the Foundation argued that if a licence permit or consent was required to render the business lawful then that obligation was already imposed upon the licensee pursuant to the first sentence since it was solely liable and responsible for due observance and performance in accordance with the applicable laws On this reading therefore in to avoid the last sentence becoming an unnecessary redundancy it was necessary to read the words licences permits and in particular consents more broadly The reference to its business meant the business in which it was anticipated under the contract that the licensee would carry out In this case it was intended that the licensee would carry on business in the private sector and this indeed occurred In order to do so the consent of TVTC was necessary for it to carry on that business It did not have that consent Accordingly the Foundation was entitled to terminate the licence 4 Skilfully put though this argument was it seems to me with respect to be an example of the approach criticised by Lord Hoffman in his judgment in the West Bromwich case That is it focuses too closely on the words and their possible dictionary definitions to the exclusion of their meaning to be gleaned from the context in which they were expressed First it appears to me that the words licences permits and consents are to be read together The principle noscitur a sociis is I think applicable Therefore consent is intended in this context to be akin to a permit or licence both of which connote a legal rather than a commercial or practical requirement The fact that consent has a somewhat broader connotation than licence or permit makes sense in this context since as pointed out by Clarke J this form of contract was applicable in a number of very different territories and it would not be possible to predict in advance the precise format of the necessary legal authorisation in any given state Furthermore the sentence must be read as part of clause 14 1 as a whole The clause undoubtedly deals with legal requirements and I see no reason to read the second sentence as shifting the context to commercial or practical matters If such a change of gear was intended then it might have been expected that it would be the subject of a separate clause In any event I doubt very much that the clause should be read with the degree of precision which the Foundation s argument demands There is no rule that if something is covered in one sentence in a contract it cannot also be addressed in another Contracts like speech often involve some degree of overlap and repetition Finally I do not necessarily accept the premise on which this argument is based It is not apparent to me that the sentences are necessarily repetitive Thus it appears that the first sentence requires the licensee to be liable for due observance and performance The second sentence makes it clear that any expenses incurred will be the liability of the licensee and in particular a licensee will not be able to look to the licence holder for any contribution to or liability for such cost 5 This brings us to the most difficult issue in the case that is whether as a matter of the law of the Kingdom of Saudi Arabia KSA it was necessary for the Dubai company or TAM to have the licence permit or consent from TVTC to operate the licence in KSA I fully agree with Clarke J that this is both a difficult and delicate task It involves the resolution of an issue of foreign law which involved the Irish court in making a determination on evidence which was in stark conflict That task is made all the more complex where as here the legal system differs markedly from those systems with which a common law court is familiar Once the foreign law is ascertained and understood there still remains the difficult task of attempting to apply that understanding to the concept of licence permits or consents which is drawn from the common law world This was a very difficult task and there was in my view a distinct lack of clarity about the respective contentions but I can see no basis for interfering with the conclusion to which the trial judge came Accordingly I agree that the appeal on this point should be dismissed The Second and Third Issues 6 I agree with Fennelly J that the agreement did not permit of partial termination and accordingly that any such purported partial termination was ineffective I also agree with him that the question of whether the letter of the 9th of August 2010 was sufficient notice of termination does not appear to have been properly before the court as a distinct ground of appeal Furthermore I agree with him that since the High Court judge was correct to hold the agreement had not been lawfully terminated on at least two bases it is unnecessary to address this issue It follows that I agree that the judgment of the Court on liability should be upheld The Fourth Issue Clause 25 Limitation of Liability 7 The trial judge made no finding on the question of whether the Foundation had been guilty of a wilful act He considered furthermore that gross negligence involved something more than simple negligence which he defined as negligence of a significant degree He concluded that the Foundation had been guilty of such negligence which could properly be described as gross negligence and therefore clause 25 did not avail the Foundation and limit its liability for damages to ten per cent of the total amount paid by the licensee or 50 000 whichever was the lesser In this court Fennelly J has concluded that the trial judge was entitled to make this finding of gross negligence and in any event the action of the Foundation in serving the notice purporting to terminate the agreement was a wilful act within the meaning of clause 25 and accordingly there was a further ground for holding that the clause 25 limitation did not apply While I recognise the force of the reasoning leading to this outcome I regret that I am not able to agree with either conclusion 8 I have some doubts as to whether the issue of wilful act was properly before this court since the High Court judge made no finding on the matter and the plaintiff did not serve any notice to vary Indeed the issue was only addressed in one paragraph of the plaintiff respondent submissions to this court However since this is an interlocutory appeal in respect of a case which has still to be disposed of in the High Court it seems to me that it is preferable to resolve as many questions as possible so as to reduce the matters which might be the subject of any further argument and appeal to this court In any event for reasons which I hope will become apparent it think it is more helpful to address the issues of gross negligence and wilful act together since they form part of the same phrase and in my view cast some helpful light upon each other 9 The plaintiff contended in the High Court and in this respect relying on respectable authority that the term gross negligence meant no more than negligence and in the vivid phrase of Lord Cranworth in Wilson v Brett 1843 11 M W 113 at p 116 that I could see no difference between negligence and gross negligence that it was the same thing with a vituperative epithet It was also argued that the words wilful act had similarly received judicial interpretation Reliance was placed on the dictum of Bowen L J in re Young and Hartson s 1886 LR 31 Ch D 168 at pp 174 and 175 relating to a vendor and purchaser summons where he observed that the phrase wilful default was commonly used in such contracts He stated that Default is a purely relative term just like negligence It means nothing more nothing less than not doing what is reasonable under the circumstances not doing something which you ought to do having regard to the relations which you occupy towards the other persons interested in the transaction The other word which it is sought to define is wilful That is a word of familiar use in every branch of law and although in some branches of the law it may have a special meaning it generally as used in courts of law implies nothing blameable but merely that the person of whose action or default the expression is used is a free agent and that what has been done arises from the spontaneous action of his will It amounts to nothing more than this that he knows what he is doing and intends to do what he is doing and is a free agent On this basis it is argued that it was only necessary that the act alleged to found the cause of action was an intentional act in the sense of being a voluntary one It was not necessary that the person intend a breach of contract or a tort as the case may be 10 By this process of reasoning it was contended that clause 25 was to be read as limiting any claim except where the claim arose from the willed voluntary act of the other party or from simple negligence I confess that this is a form of reasoning which I find wholly unconvincing It is akin to the translation of a literary text by computer programme the result rarely captures the sense of the text and often makes little sense It seems to me that this is a form of the approach to interpretation by dictionary definition compounded by judicial decision but leading to unintended results which is the approach the courts both in this jurisdiction and in the UK have rejected correctly in my view in recent years No Irish case has been cited endorsing the interpretation of the words contended for If this phrase or its component parts had become terms of art or had been so sanctified by authority that it could be said that both the drafter and the parties to the contract must have had a shared understanding of the meaning to be attributed to the phrase then I would agree that such an interpretation should be accepted even if strained or unnatural as a matter of English unless the contrary was clearly indicated However in the absence of such evidence or direct authority establishing the meaning attributed I do not think the court should adopt the approach of reading into the clause definitions used in a different time and context particularly when it leads to an outcome that in my view makes little sense and therefore is unlikely to have been intended by the parties 11 I observe that the phrases gross negligence and wilful act which have become the focus of attention in this case form part of a clause headed limitation of liability The structure of the clause therefore is to impose a general limit on the liability of the licensor to which this clause creates an exception I find it is an important starting point that the parties have plainly agreed to a general rule of limitation of damages no matter how extensive such damages might be But if the interpretation proposed by the plaintiff is correct then the exception almost swallows the general limitation It is worth asking what on the plaintiffs interpretation is the subject of the limitation on damages contained in clause 25 1 If all intentional acts are captured then only unintentional or accidental acts or possibly failure to act still giving rise to a cause of action are captured by the limitation But no plausible reason can be proffered for making such a stark distinction If the licensee does not have to intend to breach the contract then there is no difference in terms of culpability of the licensee or the damage capable of being done to the licensor which would justify confining the licensee in one case to very limited damages and in the other permitting unlimited damages Furthermore the scope of the limitation in clause 25 1 is further cut down when it is recognised that any such failure to act or unintentional act which would not be a wilful act might readily be characterised as negligence and therefore per Lord Cranworth gross negligence Indeed it would not be difficult for a competent drafter to characterise a failure to act as itself if intentional as a wilful act Since the only acts captured by clause 25 are those which give rise to a cause of action which by definition must be a valid cause of action since clause 25 will only apply to limit the damages to which the other party would otherwise be entitled then it is difficult to conceive of the

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  • the Council for Democratic Elections at its 19th Meeting Venice 16 December 2006 and the Venice Commission at its 70th Plenary Session Venice 16 17 March 2007 5 At issue in this case is the application of these principles to a booklet and a website both entitled Children s Referendum and advertisements published and disseminated by the Department of Children and Youth Affairs on foot of moneys voted by the Oireachtas which the appellant submits breach the McKenna principles 6 The Court is required to give its decision promptly in view of the pending Referendum to be held on Saturday 10th November 2012 The substance of that proposal is a matter for the people alone The Court will give its ruling today and judgements will be delivered on Tuesday 11th December 2012 7 The Court has concluded that it is clear that there are extensive passages in the booklet and on the website which do not conform to the McKenna principles This material includes a misstatement now admitted to be such as to the effect of the Referendum 8 The Court is satisfied that while not all of the website or the booklet are in breach of the McKenna principles because of the overall structure of the booklet and website it would not be appropriate for the Court to redact either 9 Accordingly the Court would grant a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys on the website booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution Children Bill 2012 in a manner which was not fair equal or impartial The Court does not consider it either appropriate or necessary to grant an injunction as it is to be assumed that the respondents will cease distributing and publishing the material THE SUPREME COURT Appeal No 486 12 Denham C J Murray J Hardiman J Fennelly J O Donnell J Between Mark McCrystal Plaintiff Appellant and The Minister for Children and Youth Affairs The Government of Ireland Ireland and the Attorney General Defendants Respondents Ruling of the Court delivered on the 8th day of November 2012 by Denham C J 1 This is an appeal by Mark McCrystal the plaintiff appellant referred to as the appellant from the judgment and order of the High Court Kearns P given on the 1st November 2012 2 This matter was dealt with as a matter of urgency by the High Court as it is by this Court as the appellant has sought declarations an injunction and consequential orders which have a relevance to the Referendum taking place on the 10th November 2012 3 In McKenna v An Taoiseach No 2 1995 2 I R 10 it was held that the Government in expending public moneys in the promotion of a particular result in a Referendum process was in breach of the Constitution The people adopted the Constitution 75 years ago The Constitution belongs to the people and may be

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  • direct reliance on any of the Strasbourg proceedings or the resolution thereof as being determinative on this court It is not suggested that the formula of words adopted in the friendly settlement has a direct bearing on the judicial review herein In the context of the McFarlane decision it must be emphasised that the only relief sought by the appellant in this appeal is simply prohibition of his impending trial No other claim or other relief of any type has been sought specifically he has not sought any financial compensation for alleged delay Consequently it is unnecessary save for general context for this court to consider anything other than prosecution delays in the case and those within the court system 24 Insofar as the appellant might have relied on the decision of the European Court of Human Rights in McFarlane counsel for the respondent submits such reliance would be misconceived McFarlane concerned an award of damages to the applicant on the basis that he had not received an expeditious trial in circumstances where the ECtHR reached the conclusion that it was not clear that the applicant could have received damages in the Irish courts had he made such a claim 25 The right to compensation for failure to provide an expeditious trial is quite different from the grounds for the relief of prohibition In McFarlane v Ireland the ECtHR did not demur from the ruling of this Court to that effect in Barry v Director of Public Prosecutions 2003 IESC 63 its reiteration by Kearns J in McFarlane v Director of Public Prosecutions and the observations to the same effect by Fennelly J in T H v Director of Public Prosecutions 2006 3 I R 520 at p 540 In T H Fennelly J observed It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights The court does not and did not in that case hold that the prosecution had to be stopped It would be most surprising if a judgment of that court holding that the prosecuting authorities were partially or completely responsible for certain periods of delay had the automatic consequence that a prosecution had to be halted Such a conclusion would in any legal system call for some consideration of the public interest in the prosecution of crime We know of course from other parts of the caselaw of the court that it does recognise the public interest in prosecuting crime see Kostovski v Netherlands 1989 12 E H R R 434 and Doorsen v Netherlands 1996 22 E H R R 330 Thus the decision of the Court leads to a monetary award It has no consequence for the pending prosecution 26 These views were recently reiterated in judgments of this court in Kennedy v Director of Public Prosecutions 2012 IESC 34 where the applicant sought to prohibit a prosecution initiated against him in 2010 arising from events that had occurred from 1992 Denham C J reiterated the three interests set out in Barker v Wingo relevant to the grant of prohibition when the issue of a right to an expeditious trial arises She went on to point out at paras 66 67 blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial An applicant would have to establish also that one of his interests protected by his right to an expeditious trial has been interfered with P T v Director of Public Prosecutions 2007 1 I R 701 D v Director of Public Prosecutions 1994 2 I R 465 P M v Malone 2002 2 I R 560 P M v Director of Public Prosecutions 2006 IESC 22 2006 3 I R 172 She added Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP a further analysis would be required to determine if there had been consequential prejudice to the appellant 27 The Chief Justice then went on to consider the effect of a decision of the European Convention on Human Rights in the context of an applicant s claim for prohibition She stated at para 80 The remedy sought in this Court by the appellant was to prohibit his criminal trial That is a remedy open to an accused under Irish jurisprudence I have had no case opened to me where a decision of the ECHR determined that as a consequence of delay a trial shall be prohibited Consequently as the remedy sought by the appellant was to prohibit his trial an option under Irish law but not apparently under the ECHR this claim has been determined on Irish law 28 In the same case Clarke J also considered the impact of a determination by the European Court of Human Rights on the continuance of domestic criminal proceedings He adopted the reasoning of Fennelly J in the T H case and pointed out that a decision by the ECtHR of a breach of an entitlement under the Convention to a reasonably expeditious trial did not automatically lead to a breach of the right to a fair trial requiring an order of prohibition He pointed out that the ECHR provides an express entitlement to a trial within reasonable time Article 6 1 and continued at paras 4 1 4 3 if making all allowance for the complexity of the case and any other factors which could legitimately lengthen the time within which the case might expect to be concluded and paying appropriate regard to any material contribution by the complainant to the lapse of time concerned the case is nonetheless not finished in a timely fashion then a breach of the Convention will be established and the complainant will be entitled to an appropriate award of damages However it does not seem to me to follow that every case in which the ECtHR determines that there has been a breach of a right to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial whether for the purposes of the ECHR or under the Constitution to the extent that there might be any difference in the relevant jurisprudence Counsel for Mr Kennedy seemed to suggest that the fact that ECtHR only had jurisdiction to award damages in the event that a breach was established was the only reason why the ECtHR confined itself in many of the cases to making a finding of a breach of the right to a reasonably expeditious trial coupled with an award of damages However it seems to me that the distinction between the right to a reasonably expeditious trial and the right to a fair trial under the jurisprudence of the ECtHR is much wider than conceded by counsel The fact that in either case the ECtHR is confined to awarding damages cannot be doubted However it does not follow that in every case in which the ECtHR finds a breach of the right to a reasonably expeditious trial also involves a finding by that court to the effect that the trial was unfair It further does not follow that it would necessarily be a breach of the right to a fair trial under the ECHR to allow a trial to go ahead after a lapse of time which amounts to a breach of the right to a reasonably expeditious trial The appropriate response to a finding of a breach of the right to a reasonably expeditious trial does not necessarily require that there can be no trial but rather can involve a range of measures including if appropriate under the law of the relevant contracting State the award of damages amelioration of the sentence imposed on conviction in criminal proceedings or any other measure which the ECtHR might consider to be a proper proportionate and appropriate response to the breach established It does not therefore follow that the ECHR requires for the avoidance of a breach of its provisions that a trial be prohibited in every case where there has been a breach of the right to a reasonably expeditious trial 29 These observations are particularly à propos in the instant case It is clear then that even a determination that there was a violation of the right to an expeditious trial does not give rise to any automatic finding that the trial is ipso facto unfair Counsel for the appellant has not suggested otherwise and largely confined his argument to prosecutorial and systemic delay seen in the light of Irish jurisprudence 30 In the instant case the appellant has not sought to avail himself of any of the remedies identified in that final passage of Clarke J s judgment in Kennedy Moreover here the appellant must have regard to the fact that he himself accepted the agreed sum as a final resolution of his complaint to the ECtHR In so doing I consider that he waived any further claim against Ireland arising from the facts giving rise to his application The acceptance of the sum of money is therefore to be seen as a final resolution of any claim that he might have had relating to a violation of his rights Conclusion 31 In all the circumstances therefore I would dismiss the appeal and uphold the High Court judgment THE SUPREME COURT JUDICIAL REVIEW APPEAL NO 380 11 Murray J Clarke J MacMenamin J BETWEEN PATRICK ENRIGHT APPLICANT APPELLANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE CARROLL MORAN RESPONDENTS JUDGMENT of Mr Justice John MacMenamin dated the 26th day of October 2012 1 This is an appeal against a judgment of the High Court Charleton J delivered on the 25th July 2011 There the learned High Court judge refused to prohibit the appellant s trial On the 4th October 2012 this Court delivered its judgment dismissing the appeal refusing the application for prohibition and directing that the prosecution would apply at the earliest time for a re listing of the trial The reasons for that judgment are now explained Background to the First Judicial Review Application 2 This is the appellant s second set of judicial review proceedings seeking to prohibit his trial on the grounds of delay The appellant stands indicted on ten grounds of forgery contrary to s 4 1 of the Forgery Act 1913 These charges arise from incidents alleged to have occurred between the 1st January 1994 and the 21st August 1994 The date for his trial had been fixed in the Circuit Criminal Court in Tralee before he initiated these judicial review proceedings 3 In the first set of proceedings in the High Court O Neill J refused to prohibit the appellant s trial see Enright v Judge Terence Finn and the Director of Public Prosecutions 2005 IEHC 454 The appellant s appeal from that decision was heard by this Court on the 29th May 2008 This Court delivered an ex tempore judgment upholding O Neill J s judgment and refusing an order of prohibition and gave its reasons on 29th July 2008 see Enright v Judge Terence Finn and the Director of Public Prosecutions 2008 IESC 49 Denham J speaking for the Court analysed the complaints advanced by the appellant under a number of headings i Non compliance with section 6 of the Criminal Procedure Act 1967 as amended with reference to the exhibits ii Delay iii Loss of witnesses iv A side bar agreement that the matter would not proceed if the applicant accommodated his former employer v An attack upon the applicant by the Law Society and vi The discretion of the court It is unnecessary to go into any of these headings in detail Suffice it to say that the judgment considered each issue and concluded that the appellant had not demonstrated that there was a real risk of an unfair trial on the basis of actual prejudice under any of the headings and therefore the appeal was dismissed These issues relating to the fairness of the intended trial must therefore be taken as res judicata 4 It is necessary then to trace the events after the Supreme Court judgment under two separate headings The court will consider first the subsequent conduct of the prosecution and the events in the District and Circuit Courts in the context of prosecutorial delay and what is termed systemic delay that is delay within the context of the court system Second it will be necessary to analyse the effect of an application made by the appellant to the European Court of Human Rights ECtHR in respect of the alleged delay in prosecuting the charges Background the Second Judicial Review Application 5 The appellant is a solicitor The District Judge assigned to the relevant district was acquainted with him As a result another District Judge was designated to deal with the case He will be referred to as the designated Judge The designated Judge was not in attendance on the 22nd October 2008 when the matter came next before Tralee District Court the matter therefore had to be adjourned until the 10th December 2008 Unfortunately on a number of subsequent dates that designated Judge was again sitting elsewhere and the matter had to be adjourned Those dates were the 10th December 2008 the 25th February 2009 the 25th March 2009 the 27th May 2009 the 22nd July 2009 the 7th October 2009 and the 4th November 2009 6 However at no point during that period did either the prosecution or defence make an application to the sitting District Judge to request the President of the District Court to assign a different judge to deal with the matter A further difficulty had also arisen because the State Solicitor for Kerry was also acquainted with the appellant and a different State Solicitor who unfortunately had an illness had to take the matter over None of these issues however were incapable of speedy resolution if appropriate actions had been taken 7 On the 7th December 2009 however the designated Judge was in a position to attend at the Tralee District Court On that occasion it was submitted on behalf of the appellant that the proceedings should be dismissed on the grounds of delay The Judge reserved his decision and the matter was adjourned until the 21st December 2009 On the latter date he indicated that he required further time to consider the matter The matter was again listed on the 11th January 2010 when unfortunately there was no appearance on behalf of the Director of Public Prosecutions and the matter was yet again adjourned to the 1st February 2010 On the 1st February 2010 the designated Judge ruled against the appellant in relation to the delay point The matter was then adjourned until the 26th February 2010 for the purpose of taking depositions By that date the preliminary examination of witnesses in the District Court had concluded and the appellant was returned for trial at the next sittings of the Circuit Criminal Court in Tralee 8 On the 21st May 2010 the matter appeared in a list to fix dates in the Circuit Criminal Court The solicitor representing the Director of Public Prosecutions indicated to the learned Circuit Judge who is the second named respondent herein that the prosecution would not be in a position to deal with the matter until the middle of July 2010 Consequently the matter was adjourned to the following list to fix dates On the 4th October 2010 the case again appeared before the learned Circuit Judge in a list to fix dates On that occasion again there was no appearance by or for the Director of Public Prosecutions The matter then had to be adjourned to the next list to fix dates It should be said in fairness that it is not alleged the Circuit Judge was in any way responsible for the delays and mishaps which occurred On the 5th January 2011 the trial was finally fixed for the 5th April 2011 following an application by the prosecution The application for leave to seek judicial review herein was made on the 28th February 2011 The Appellant s Submissions 9 Counsel for the appellant submits that he cannot receive a fair trial in accordance with the provisions of the Constitution or the provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms by reason of the efflux of time from the time of his arrest in connection with these matters in 1994 up to the present date In argument his counsel submits that the delay in the criminal proceedings should be divided into two parts namely first the time period from the appellant s arrest to the judgment of the Supreme Court in 2008 and secondly from that judgment up to the date upon which the appellant s trial date was fixed This latter period it is said is of particular significance having regard to the earlier lengthy delay 10 In the light of the earlier Supreme Court decision no complaint can arise regarding matters of alleged actual prejudice which occurred prior to that decision The matters are res judicata Instead counsel for the appellant submitted there was presumptive prejudice arising from the lapse of time which took place after the Supreme Court decision to be seen now in the context of the overall timespan of the entire case going back to 1994 He submitted that in the circumstances there was an added onus upon the Director of Public Prosecutions subsequent to the first Supreme Court judgment to ensure that the appellant s right to an expeditious trial was vindicated Prosecutorial Delay 11 In my view an added obligation did devolve on the prosecution to ensure that the trial proceeded in an expeditious manner The prosecution did not proceed in this way and for this a significant degree of the blame must be placed on the Office of the Director of Public Prosecutions or those representing it There was blameworthy delay on the part of the prosecution authorities arising

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  • argue with the proposition that the appeal was moot although it needs to be noted there remains a discretion in this court to consider a moot appeal in the sort of unusual or exceptional circumstances identified in the jurisprudence most recently analysed in the decision of this court in Okunade anor v Minister for Justice Equality and Law Reform 2012 IESC 49 In any event the merger in this case is of course still very much alive It is the very fact that the merger as contemplated has been it is said completed that gives rise to the mootness argument advanced on behalf of Rye 5 4 At the hearing of this application counsel on both sides set out a brief account of their argument on the question of mootness It seems to me to be useful at this stage to record those competing positions On behalf of the Competition Authority counsel argued that the appeal could not become a moot simply because a merger had taken place To regard such an appeal as being moot and thus to deprive the Competition Authority of an opportunity to have this court consider on the merits whether the High Court was correct in overturning the view of the Competition Authority would it was said be contrary to the statutory regime On that basis the primary position of counsel for the Competition Authority was that the appeal could not be moot in any circumstances 5 5 At the other extreme counsel for Rye argued that by allowing the merger to go ahead i e by not seeking some form of interlocutory court intervention the Competition Authority had allowed the issue to become moot In one sense if the position is found to be as straightforward as that primary argument advanced on behalf of Rye there then would be no need for evidence Counsel for the Competition Authority was prepared to stipulate for the purposes of the appeal that the merger had gone ahead and that some steps by way of integration had occurred Counsel was not however prepared to stipulate that the account of the steps taken by way of integration as set out in the schedule specifying the evidence sought to be introduced by Rye was necessarily correct in all respects and perhaps more importantly necessarily gave a full picture of all relevant matters Be that as it may if the pure argument advanced on behalf of Rye which is to the effect that allowing the merger to go ahead and allowing some steps be taken on foot of it is sufficient to render the proceedings moot was to be found to be correct then there would be no need for further evidence for that argument can be made on the law and on the facts stipulated by counsel for the Competition Authority 5 6 However both counsel accepted that this was to a very large extent new territory There have been no mergers cases before this court under the existing statutory regime The issues which this court will have to address on the substantive appeal under the mootness argument are therefore at least in significant part novel It follows that both counsel were prepared to accept at least for the purposes of argument that there was a possibility that the court might conclude that neither pure position was correct but that the question of mootness might arguably depend on just how far integration had gone and how difficult it might be to reverse any such integration For example it might be argued that what came to be described as merger lite in the course of argument i e a merger where the formal takeover took place but no significant integration measures were adopted might not lead to an appeal being moot but that a different case in which significant integration had occurred which would be difficult to reverse might give rise to a different conclusion It is in that context that counsel for Rye indicated that it was considered desirable that the court have available to it some evidence as to the integration steps which have actually occurred 5 7 One further nuance in the arguments put forward needs to be noted While not conceding that the evidence sought to be tendered would be relevant even then counsel for the Competition Authority accepted that there might be a different issue as to the relevance of the evidence in question to a situation which might arise in the event that the Competition Authority were successful on their appeal thus reversing the decision of the High Court and in substance reinstating the original decision of the Competition Authority In those circumstances the question might arise as to what happens next On that basis counsel argued the merger again becomes unlawful because it does not have the requisite consent But the merger has actually taken place The court might then have to consider what is to happen and what measures should be put in place to as it were unscramble the egg Again the primary argument of counsel for the Competition Authority was that any problems which might be encountered in unscrambling the egg were problems which Rye has brought on itself by completing the merger even though an appeal was at the early stages anticipated and during much of the integration process actually in being 5 8 That question of course begs the contentious issue between the parties as to whose fault the current situation now is a question on which I have already touched However both counsel accepted contrary to their respective primary positions that there might at least be an argument that the court would have to consider in determining what order or directions it might have to give the practicalities of a de merger In simple terms it is I think fair to summarise the argument put forward on behalf of the Competition Authority as being one which said that the proposed evidence could never be relevant but that if contrary to that view there were circumstances in which the evidence could be relevant same only would arise after the appeal had been determined on the merits that is to say as the legislation seems to require on the materials which where before the Competition Authority and on the basis of the decisions of the Competition Authority and the High Court on those materials Should the appeal be allowed and in the context of deciding what practical measures were required to be adopted as a result of a successful appeal by the Competition Authority which rendered a merger which had actually taken place as being one which no longer had the requisite consent it was accepted as arguable although contrary to the principal position adopted by the Competition Authority that post High Court evidence might be relevant 5 9 It seems to me that it is not possible to resolve those very important issues on a motion such as this Whether and if so to what extent the precise level of integration which has been achieved and perhaps any difficulties that might be encountered in disentanglement could be relevant to a mootness question is one which will require careful consideration at the trial It seems to me that it would be premature to seek to determine on a motion such as this that there were no circumstances in which the level of integration of two corporate entities that have merged in circumstances such as had occurred in this case might not be relevant to a mootness issue I make that point without in any way indicating any views on the merits of the arguments which have been outlined in this judgment However it seems to me that having concluded that there could at least in theory be circumstances where such evidence might be relevant it is necessary to address the logistical question on which the Competition Authority placed reliance 6 The Logistical Question 6 1 As pointed out earlier it may be that the court will accept either the pure position argued on behalf of the Competition Authority i e that mootness does not arise at all or the pure position adopted on behalf of Rye which is that the case is moot because the merger has gone ahead with some consequences irrespective of the extent of those consequences At either of those extremes it is hard to see how the evidence sought to be tendered could be relevant It is only if there is found to be an intermediate position where the extent of the measures taken to implement the merger as notified to the Competition Authority is relevant to the question of mootness that the evidence in question can really be relevant at all However if that question i e the question of the extent of integration becomes relevant then that brings into stark relief the logistical issues raised on behalf of the Competition Authority How is this court as an appeal court to reach a legitimate and fair estimation of the extent of integration and the difficulties of disentanglement coupled with perhaps on one view an assessment of whose fault it was that integration had gone so far without intervention with that later question in turn being based perhaps on precisely when integration measures were put in place 6 2 At this stage it is not possible for the reasons already outlined to identify the precise test if any which this court might decide is applicable On that basis it is not possible to identify the precise evidence that might be material However it seems self evident that if additional evidence of integration is to be permitted fair procedures would require that the Competition Authority be allowed to investigate the accuracy of the evidence tendered and indeed to apply any appropriate procedural measures to ascertain whether there are other connected facts which might also legitimately be brought into the picture for the purposes of an overall assessment by the court To put it at its mildest it seems to me that an exercise of that type is one which this court would permit to be conducted before this court only in the most exceptional circumstances This court is a court of appeal which is not geared to considering for the first time contested issues of fact 6 3 To take but one simple example it might well be that the Competition Authority would accept that as a matter of fact certain delivery services have been discontinued and certain factories closed However there could be a very real difference between the parties as to the extent to which it might be difficult or easy to reinstate the same or very similar facilities as a preliminary to a de merger 6 4 In those circumstances it seems to me that it would be inappropriate for this court to engage at least at this stage in any assessment of the facts concerning integration the reasons why integration went ahead and whether any party might be faulted thereon and the ease of unscrambling the current situation For this court so to do would run a very real risk of this appeal becoming unmanageable and would also run a very real risk of an unfair process In those circumstances it seems to me that the better course of action is for this court to approach the question of mootness at least initially on the basis of principle If for example this court takes the view that the questions of detail concerning the level of integration and the other matters analysed could not be relevant to an assessment of mootness then there would be no need for any such assessment to be carried out On the other hand if this court considers that a nuanced view on those issues was relevant to the issue of mootness then this court will also have to decide how the facts relevant to that question are to be determined Are they for example contrary to the almost universal practice of this court as an appellate court to be determined on the appeal or are they to be referred back to the High Court to exercise a fact finding role This court must first come to a decision in principle on those questions i e whether a nuanced view is relevant at all and if so how the facts are to be determined to allow an assessment of the relevant issues to be made Thereafter and dependent on the view which this court comes to it may be necessary to put into place appropriate procedural measures either in this court or by reference back to the High Court 6 5 However it does seem appropriate that this court have before it at least at a very general level a brief outline of the sort of measure of integration contended for on behalf of Rye so as to assist this court in dealing with the issues which I have identified on something other than a purely hypothetical basis In those circumstances I would be prepared to allow subject to a number of modifications to which I will shortly turn a statement to be put before this court on appeal setting out briefly the contentions put forward by Rye on the integration question That statement will not however it must be made clear be accepted as evidence to be assessed on the merits at the appeal but rather purely as a statement of the sort of matters on which Rye would wish to place reliance in the event that the court was persuaded that a nuanced view of the facts was material to the mootness question It would be admitted as a statement of assertion rather than evidence on which a finding of fact could be made 6 6 Lest it be said that the Competition Authority might be prejudiced by what might be seen as a one sided statement of assertion I would also permit the Competition Authority to file a similar statement of similar length solely directed towards putting forward whatever questions currently might be considered relevant by the Competition Authority in addressing a nuanced view of the relevant facts should the court contrary to the submissions of the Competition Authority come to the conclusion that such an assessment was necessary to determine the mootness question The statement to be put in by the Competition Authority will as will the statement to be put in by Rye simply be a statement of contention rather than evidence on which findings of fact could be made 6 7 On that basis the court will at least have a broad overview of the kind of factual issues which might arise in the event that it became necessary to reach relevant findings of fact At a minimum such an account could be of assistance to the court if it came to the view that such facts were relevant in deciding how such facts were to be determined 6 8 Having mentioned that there was a minor qualification to the admission even on the basis of contention of the statement proposed on behalf of Rye I now turn to that question 7 The Contents of Rye s Evidence 7 1 The only basis on which there is an argument in favour of any of the evidence sought to be tendered on behalf of Rye being regarded as relevant is that it is evidence which touches on the extent to which the merger has actually gone ahead in the context of an argument as to mootness Two of the paragraphs of the evidence sought to be tendered paragraphs 6 and 8 seem to me to relate solely to issues which concern the question of whether savings anticipated at the time when the merger was proposed have actually been achieved These paragraphs state 6 By way of a sample instance the efficiency saving as a result of Kerry carrying out the production formerly carried out by contracting with Dawn is approximately 500 000 per annum This saving has been passed on to consumers in the form of a reduced price and increased promotional activity 8 In respect of contractual terms since the merger annual discounts to customers have in the main increased 7 2 I can see no basis on which the evidence contained in those paragraphs could be relevant on any view In fairness counsel for Rye accepted as much when the issue came up and did make the point that there had been no suggestion prior to the hearing about the adequacy or otherwise of the detailed contents of the statement However it seems to me that those paragraphs should not be included in any statement filed 8 Conclusions 8 1 It seems to me therefore that both sides should be permitted to file a short statement On Rye s side this statement should set out the facts contained in its proposed statement of evidence with the exclusions to which I have already adverted On the Competition Authority s side the statement should set out any issues considered relevant concerning the factual matrix within which a nuanced decision on the facts might need to be considered in the event that the court came to the view that such an approach was mandated Both statements should be verified by affidavit asserting that they represent the relevant positions of the parties 8 2 It should be made clear that both statements are being accepted by the court as evidence of the position which the respective parties adopt at a broad level on this question rather than as evidence from which the court will make specific findings of fact In the event that the court concludes that specific findings of fact are necessary to its determination then the court will decide at the level of principle how those findings of fact are to be arrived at The relevant statements may be of assistance to the court in determining an appropriate procedure to be put in place to reach such findings should a conclusion on the factual position be found to be necessary to the court s decision 8 3 I would propose that the court might hear counsel further on the time within which the statements to which I have referred can be filed THE SUPREME COURT Appeal No 139 2009 No 185 2009 Clarke J MacMenamin J Hanna J Between Rye Investments Limited Appellant Respondent and The Competition Authority Respondent Appellant Judgment of Mr Justice Clarke delivered the 26th of October 2012 1 Introduction 1 1 This application concerns a question as to whether new evidence should be admitted in these appeals The proceedings generally involve a decision made by the respondent appellant the Competition Authority to refuse to sanction in accordance with s 22 3 of the Competition Act 2002 the 2002 Act aspects of a proposed merger between the appellant Rye a wholly owned member of Kerry Group plc and two companies being Breeo Foods Ltd and Breeo Brands Ltd both of which were ultimately owned by the Dairygold Co operative Society and its shareholders 1 2 The relevant legislation being s 24 of the Act of 2002 allows for an appeal to the High Court against such refusal This Rye did The form of appeal to the High Court is limited by statute and it will be necessary to make some brief reference to the parameters of such appeal in due course 1 3 Rye was successful in its appeal which was determined by Cooke J on the 19th March 2009 see Rye Investments Ltd v The Competition Authority 2009 IEHC 140 The Competition Authority has appealed to this court against that decision of the High Court It will be necessary to say a little more about the procedural history of the process before the Competition Authority the appeal before the High Court and the appeal to this court in due course However this case was one of those selected by the Chief Justice for the purposes of micro management In the course of that micro management procedure it emerged that Rye wished to place before the court evidence as to what had happened subsequent to the decision of the High Court The context in which that evidence is said by Rye to be relevant is that as already indicated the High Court allowed the appeal against the Competition Authority s decision so that as a result of the High Court order the relevant merger was allowed to go ahead No stay or injunction was sought or granted to prevent that happening It is common case that the merger has gone ahead and it is at least for reasons which I will explore in due course accepted to a point on behalf of the Competition Authority that there would be some consequences for Rye in attempting to as it were unscramble the egg Against that background Rye wishes to place before the court evidence of what has happened since the decision of the High Court The formal merger has of course occurred and this is accepted by the Competition Authority However Rye wishes to place before the court evidence of the measures adopted by the merged entity to streamline the combined business It is said on behalf of Rye that such evidence is potentially relevant to its contention that these proceedings are now moot by virtue of the fact that the merger has gone ahead The Competition Authority resists Rye s application principally on the grounds that it said that the evidence in question is not relevant to this appeal but also on other grounds 1 4 In order to more fully understand the precise issues which have arisen it is necessary to say a little more about the procedural history to which I now turn 2 Procedural History 2 1 The procedural history is relevant principally because it forms the backdrop to the suggestion and counter suggestion made respectively by the parties as to why it is that this court is now faced with a statutory appeal against a decision of the High Court to allow a merger in circumstances where the merger has in fact already gone ahead 2 2 Under s 18 1 of the 2002 Act it is necessary that a merger such as that with which this appeal is concerned be notified to the Competition Authority The relevant notification in this case took place on the 20th March 2008 The merger itself had a so called drop dead clause whereby if the merger did not go ahead by March 2009 the agreement would be at an end and a substantial deposit 20 million would be forfeited The Competition Authority determined the merger application on the 28th August 2008 Thereafter Rye applied to the High Court by an initiating notice of motion on the 26th September 2008 seeking a declaration annulling the determination of the Competition Authority Given the urgency of the matter having regard to the drop dead date Cooke J gave the case a highly expedited hearing and gave his judgment on the 19th March 2009 with his order being perfected the following day on the 20th March Some six days later on the 26th March 2009 the formal arrangements for the merger were put in place that being the last day for completion of the merger on foot of a negotiated brief extension of the drop dead date 2 3 Thereafter an appeal was brought to this court It is said on behalf of the Competition Authority that while the relevant appeal post dated the actual completion of the merger arrangements nonetheless it would have been obvious to Rye at the time when the merger was completed that an appeal was likely 2 4 No application in the nature of a stay or injunction was brought by the Competition Authority It is said on behalf of the Competition Authority that in the light of the form of order made by Cooke J a stay might not have been appropriate and thus that the only form of restraint that could have been imposed would have been by way of injunction In those circumstances it is said that the Competition Authority as a public body could not have given the type of undertaking as to damages which might well have been required in order to secure such an injunction pending a resolution of the appeal 2 5 Against that background both parties in substance blame the other for the current situation Rye says that the Competition Authority deliberately allowed the merger to go through without invoking or seeking to invoke a jurisdiction which the court undoubtedly would have had to prevent that process pending a resolution of the appeal to this court The Competition Authority suggests that Rye must be said to have taken its chances by going ahead with the merger when it knew or ought to have known that an appeal was likely and that a possible outcome of any such appeal might be that this court would reverse the decision of Cooke J thus rendering the merger unlawful with whatever practical consequences might flow from that 2 6 Some further points were canvassed by both parties on that question The Competition Authority suggests that the extreme urgency with which the matter had to be approached stemmed from the fact that the parties to the merger had agreed the drop dead date and that there was no reason in principle why it might not have been possible to negotiate an extension of the period in question to accommodate an expedited appeal Furthermore both sides blamed the other for a failure to seek at least in an urgent way that the appeal be given priority In addition the Competition Authority argued that whatever about the necessity for the closure of the formal merger arrangements taking place on or prior to the drop dead date there was no reason why the additional streamlining or integration measures also had to be implemented while an appeal was outstanding It is suggested that most if not all of those measure would in fact have taken place after the appeal had been filed and that such measures were not necessary to avoid the merger arrangements coming to an end by non closure before the drop dead date with the forfeiture of the significant deposit 2 7 On the other hand Rye relies on the converse of the same point In answer to the suggestion by the Competition Authority that the merger itself had taken place before any appeal could be brought Rye suggests that there was nothing to prevent the Competition Authority seeking an order after the appeal was lodged that would have restrained an integration of the respective businesses while allowing the formal merger to take place Doubtless many more points might and could be made on either side of this contentious question However it does not seem to me to be appropriate to express any view on those competing arguments at this stage The arguments may well require resolution either in the context of the appeal or on one view in the event that the appeal is determined in favour of the Competition Authority on the question of what form of order ought be put in place in such circumstances and in the light of the fact that the merger has in fact gone ahead with the businesses being integrated to the extent that they have However those questions are for another day 2 8 Against that background it is next necessary to turn to the issues 3 Issues 3 1 The basis on which Rye ultimately made its case was to suggest that in one sense its application was unnecessary It was suggested by Rye that on a proper construction of the relevant rule Order 58 Rule 8 of the Rules of the Superior Courts it is not necessary to obtain leave of the court to admit evidence of events which have occurred after the decision in the High Court which is the subject of the appeal That proposition was questioned on behalf of the Competition Authority 3 2 However the Competition Authority also argued and this it seemed to me was the central issue between counsel that the evidence sought to be introduced could not be relevant to the appeal and should not therefore be admitted irrespective of whether leave was required The argument of the Competition Authority was that if leave was required it should be refused on the basis of the evidence being irrelevant However it was said that even if leave was not required the court should now determine that it would not consider the proffered evidence on the basis likewise that it was irrelevant The question of the relevance of the proposed evidence was on any view therefore central to the issues which arose on this appeal 3 3 Finally a practical issue was raised on behalf of the Competition Authority It has already been noted that the Competition Authority accepted at least to a certain extent that there would be consequences for Rye in the event that it was required to undo the merger In reality the evidence sought to be tendered concerns the extent of the integration measures which have in fact been put in place subsequent to the merger As I understand it Rye s case on relevance is that such evidence is material to the question of whether the appeal is as Rye asserts moot given that the merger has gone ahead However it is argued on behalf of the Competition Authority that even if contrary to the Competition Authority s primary position the evidence could be relevant that situation gives rise it is said to a most difficult logistical problem 3 4 While it may well be that the Competition Authority accepts some of the facts set out in the evidence proposed to be tendered on behalf of Rye it is argued that it would be unfair for this court to determine the appeal on the basis of evidence which is not capable of being challenged in a practical way and in circumstances where the Competition Authority would not have available to it an appropriate means of inquiring into whether additional evidence was required to be put before the court with a view to seeking to minimise the extent to which it might be difficult to unscramble the egg in this case 3 5 To use a metaphor suggested from the bench in the course of the hearing it might be that it would be possible for the Competition Authority to persuade the court if it had a proper opportunity that this was simply a case where the egg white and egg yolk had been separated rather than one where there had been a proper scrambling To the extent therefore that the court might consider it relevant to assess the degree of difficulty which Rye would encounter in restoring the affairs of the respective businesses to an unmerged state the Competition Authority argues that such an exercise would require a significant lengthening of the appeal before this court coupled with the undoubted difficulties which would be encumbered in inviting this court to consider facts which had not been the subject of tested evidence and findings in the High Court 3 6 Against that background I will turn first and briefly to the issue under the rules 4 The Rules 4 1 The relevant rule is Order 58 Rule 8 of the Rules of the Superior Courts which provides The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court together with full discretionary power to receive further evidence upon questions of fact such evidence to be either by oral examination in court by affidavit or by deposition taken before an examiner or commissioner Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought Upon any appeal from a final judgment or order such further evidence save as to matters subsequent as aforesaid shall be admitted on special grounds only and not without special leave of the Supreme Court obtained upon application therefor by motion on notice setting forth such special grounds The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require The powers aforesaid may be exercised by the Supreme Court notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied and such powers may also be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have appealed from or complained of the decision The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just emphasis added 4 2 The rule does seem to distinguish between evidence in relation to matters which occurred after the decision of the High Court as opposed to matters which arose before such decision On any view the evidence sought to be tendered on this appeal concerns events which occurred post the decision of the High Court On that basis it seems clear that special leave of the court is not required under the rule 4 3 However in Fitzgerald v Kenny 1994 2 I R 383 Blayney J indicated that the court nonetheless retained discretion as to whether evidence should be admitted in respect of events which occurred after the decision of the High Court It seems to me that the reason for this is obvious In the ordinary way and at least in very many cases evidence of what occurred after a decision in the High Court will not be relevant It would not be in accordance with the requirement that appeals to this court be conducted in an orderly fashion that a party could simply place before the court irrelevant evidence not considered by the High Court and invite this court to take such evidence into account on an appeal This court clearly retains a discretion the rule speaks of full discretionary power to exclude additional evidence even where that evidence arises in respect of events which occurred after the High Court had concluded the case Unless there is some realistic basis on which it can be argued that the evidence in question could be relevant to the issues which this court has to decide on appeal then it seems clear that the evidence should be excluded 4 4 It seems to me therefore that this court has an inherent jurisdiction to rule out evidence relating to facts which occurred after the High Court decision on the grounds of relevance This will particularly be so where a case is subject to significant pre appeal hearing case management The whole point of such case management is to ensure that the issues which are to be considered at the hearing of the appeal itself will be as refined as is possible consistent with affording both sides a fair hearing In such circumstances it is entirely appropriate for this court where possible to rule in advance and at least in clear cases on the relevance of any evidence sought to be tendered concerning facts which occurred after the decision in the High Court If such evidence could not be relevant then it is appropriate that it be excluded at an early stage so as not to unnecessarily lengthen the hearing of the appeal It follows that it is appropriate on this application to consider and if possible determine the question of relevance I should however add that there may be cases where a

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  • of the first being coercive and the latter being punitive O Dálaigh C J in Keegan v de Burca 1973 1 I R 223 saw the matter as follows Criminal contempt is a common law misdemeanour and as such is punishable by both imprisonment and fine at discretion that is to say without statutory limit its object is punitive see the judgment of this Court in Re Haughey Civil contempt on the other hand is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the order of the court and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made 90 It has become clear in more recent cases that this passage may present an over simplification and that on occasion there may be a punitive element in cases of civil contempt 91 The following passage from the judgment of Finnegan P in Shell E P Ltd v McGrath Others 2007 1 I R 671 has been approved in later cases Committal by way of punishment likewise should be the last resort It should only be engaged where there has been serious misconduct In such circumstances it can be engaged in order to vindicate the authority of the Court In litigation concerning exclusively private rights this will usually occur only at the request of the Plaintiff Circumstances may exist which cause the Court to act on its own motion Jennison v Baker Seaward v Patterson 1897 1 Ch 545 However where the interest of the public in general is engaged or where there is a gross affront to the Court it would be appropriate for the Court to proceed of its own motion to ensure that its orders are not put at naught I am satisfied that such a power must be inherent in the Court In the words of Judge Curtis Raleigh The law should not be seen to sit by limply while those who defy it go free and those who seek its protection lose hope Finnegan P continued in a passage which I quoted in my own judgment earlier this year in Dublin City Council v McFeely 2012 I E S C 45 More accurate is the proposition in Flood v Lawlor 2002 3 IR 67 which left open the question as to whether civil contempt is exclusively as distinct from primarily coercive in nature In Ross Company Ltd Anor v Patrick Swan Ors 1981 ILRM 417 O Hanlon J was of the view that in an appropriate case the Court must exercise its jurisdiction to commit for contempt not merely for the primary coercive purpose but in order to vindicate the authority of the Court and in which case the Court has jurisdiction to make a punitive order His approach is supported by the cases which he mentions Yager v Musa 1961 2 ALL ER 561 562 and Danchevsky v Danchevsky 1974 3 ALL ER 934 It is also supported by Jennison v Baker 1972 1 ALL ER 997 Phonographic Performance Ltd v Amusement Caterers Peckham Ltd 1964 Ch 195 and by the passage which I quote from Halsbury 92 Counsel for the Bank cited a wide range of convincing authority for the proposition that the inherent jurisdiction of the court to act in protection of its own orders is as ample as the occasion may require In Nicholls v Nicholls 1997 1 W L R a number of quite significant procedural defects were found in an order committing a husband for contempt of court Lord Woolf M R thought it would be unjust to set aside the order in the absence of any prejudice He added Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor The court itself has a very substantial interest in seeing that its orders are upheld If committal orders are to be set aside on purely technical grounds which have nothing to do with the justice of the case then this has the effect of undermining the system of justice and the credibility of the court orders While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor if there is non compliance with the requirements which do not prejudice the contemnor to set aside the order purely on the grounds of technicality is contrary to the interests of justice 93 In Mercantile Group EUROPE A G v Aiyela an order had been made at first instance against a person described as a third party against whom no cause of action lay Various members of the Court of Appeal upheld the order Steyn L J thought that it was just and convenient that the court should have jurisdiction to make such orders Sir Thomas Bingham M R argued for a jurisdiction such that the armoury of powers available to the court to ensure the effective enforcement of its orders I am in full agreement that it is of the first importance that the courts have all such powers as are necessary for the purpose of enforcing its orders The question here however is not whether the court would have had the power to make the coercive orders proposed in the letter of 27th June If properly framed notified and justified by evidence they might well have been appropriate orders 94 Insofar as we are concerned at this point in the present case with coercive measures we must decide whether the court can order a person to take positive steps to reverse transactions alleged by the plaintiff to be wrongful by reason of a finding of a particular but different finding of contempt 95 The position seems to me to be clear A person who has been found guilty of contempt of court may be required by an order of a court to purge his contempt Where following a finding of contempt a person refuses to obey the court order he may be imprisoned by order of the court until he undertakes to obey the order i e purges his contempt Imprisonment is not the only remedy In certain types of case a court has been known to impose a daily or other periodic fine In the case of a corporation assets may be sequestered 96 The point is however that the contemnor is required to cease and desist from doing the act which he has committed and which has been held to be a contempt or where appropriate to act positively so as to remedy the wrong In either event it is the contempt which must be purged I have not come across any case where a contemnor has been required pursuant to the contempt jurisdiction to undo an act in respect of which he has not been found to be in contempt Counsel for the appellant repeatedly submitted that there was no authority for the proposition advanced on behalf of the Bank that coercive orders could be made on 29th June and arising from the finding of contempt made on 26th June as it was put irrespective of any finding of contempt and for the purpose generally of protecting the order of Clarke J No such authority has been produced 97 The Bank submitted that in circumstances where a number of breaches of the order had been established beyond reasonable doubt the coercive orders sought were appropriate to protect the remaining parts of the order rather as it was submitted than have a situation where each individual contempt must be alleged proved and brought back before the court for that purpose and a further order sought 98 The Bank also relied in support of its proposition on two aspects of the evidence Firstly it said that the evidence established that the appellant was party to a plan or scheme amounting to a conspiracy with other members of the Quinn family to put assets out of the reach of the Bank Secondly it was said that certain particular pieces of evidence had emerged in the course of the contempt hearing before Dunne J and at a later point in the disclosure affidavit sworn by the appellant 99 It would not be right for this Court at this point and on this appeal to comment on the strength of the evidence available to the Bank in respect of the alleged participation by the appellant in the plan or scheme to put assets beyond the reach of the Bank There is striking evidence in the appellant s own affidavit of 20th July 2012 100 The central point is as counsel for the appellant repeatedly emphasised before the High Court that the Bank never sought to amend its notice of motion so as to allege a broader range of acts of contempt against the appellant Counsel for the Bank in the course of the appeal correctly and properly explained that at the time of issue of the notice of motion the Bank did not have sufficient evidence to allege any act of contempt of court against the appellant other than in respect of the single matter of the US 500 000 transaction The logic of that perfectly correct position is that in the event that the Bank wished to allege other acts of contempt against the appellant they should have taken steps either to apply to the High Court to amend the existing notice of motion or to issue a new one 101 I cannot accept the argument of convenience advanced by the Bank that it should not be necessary have a situation where each individual contempt must be alleged proved and brought back before the court for that purpose and a further order sought Those are simply the demands of respect for justice and the rule of law 102 I said in my judgment in McFeely v Dublin City Council cited above 2 The remedy of committal for contempt of court is an indispensable procedural remedy whereby the courts can give effect to their orders promote enforcement of orders in the interest of the parties and guarantee respect for the administration of justice and the rule of law Without it defiant and recalcitrant litigants might be able to defy the courts and the law and deprive opposing parties of their just rights The ultimate remedy is committal to prison for contempt of court 3 The other side of that coin is that the severity of the remedy of committal to prison for contempt of court necessarily requires due respect for the rights of the parties to be subjected to it The simplest and most basic of all the requirements of justice is due and fair notice be afforded to the party charged Lawyers call it audi alteram partem 103 Having referred to the provisions of Order 44 of the Rules of the Superior Courts I also said The object of these rules is to comply with the obvious need to respect fair procedures where a person is at risk of being imprisoned that is to respect the rule of audi alteram partem It is inherent in this system that the person be put on notice of the nature of the contempt alleged against him In a case where the charge is that he is in breach of a court order he should be told what the order is and how he is alleged to be in breach It seems to me axiomatic that these procedures must be observed before the court makes a finding that the person is in breach of the order That is what the contempt consists of 104 The procedural defect in the McFeely case was that the High Court heard an inquiry into whether the respondent had committed contempt of the court order before any notice of motion for attachment and committal was issued At the subsequent attachment hearing the court held that it had already found the respondent to be in contempt In that case the party had been found guilty before he had received notice of the complaint against him 105 The procedural problems in the present case arose in a different way There was in the first instance a perfectly fair and proper hearing on foot of a notice of motion alleging specific acts of contempt against three respondents but only one against the appellant The appellant was charged with a breach of the order of Clarke J He was in effect and as I have said correctly guilty as charged In that respect the appellants can make no complaint 106 What then occurred was that in the guise of further consideration of the contempt finding a wide range of new orders were sought against the appellant While described as coercive orders they went far beyond the subject matter of the single finding of contempt They could not truly be regarded as coercive measures In their content they could conceivably have formed the subject matter of an application for interlocutory injunctions For the reasons already given the order of 29th June cannot be regarded as and did not purport to be an order by way of interlocutory injunction If such an application had been made the Bank would have had to apply by way of notice of motion grounded on affidavit It would have had to justify the grant of what would have amounted in the main to a large number of mandatory injunctions The appellant would have had the right to file a replying affidavit None of that was done 107 Finally and of crucial relevance to the order made on 20th July imprisoning the appellant indefinitely until he purges his contempt the Bank would have been obliged to comply with the requirements of Order 44 of the Rules if they were to apply for attachment and committal for breach of the new orders That was not done 108 The Bank relies in its written submissions on the appeal on a large number of matters which they say were disclosed by the appellant in his disclosure affidavit of 20th July which it is said amount to further serious breaches of the order of Clarke J The Bank may well have justifiable grounds of complaint Nobody could doubt the seriousness of the matters alleged The problem is that no notice of motion had been served seeking attachment or committal on foot of those allegations The appellants faced the risk of being imprisoned for his failure to comply with a large number of requirements of the order of 29th June with no notice 109 Furthermore the Bank cites a large number of acts of alleged failure by the appellant with the coercive orders Again none of these were the subject matter of the contempt motion served in February 110 The Bank seeks to answer any concerns regarding procedural fairness by saying that counsel for the appellant expressed themselves anxious to proceed with the matter on that day Counsel could not conceivably be taken on that basis to have consented to a procedure whereby their client was to be sentenced for acts of contempt of court going beyond the finding of 26th June 111 Regrettably the procedures followed by the Bank in respect of the appellant after 26th June fell far short of what is required and should be expected The Bank was entitled to seek appropriate orders flowing from the finding of contempt of court made by Dunne J on 26th June but not otherwise In the result its actions were procedurally and substantively flawed procedurally because of absence of notice substantively because of the assumption that coercive orders could be granted without connection to the finding of contempt 112 None of this is to say that the Bank does not have strong grounds for pursuing the appellant in respect of all or any of the matters the subject matter of the coercive orders of 29th June But the Bank must follow appropriate procedures It is right and necessary that the Bank take steps to protect the integrity of the orders of the court That is to pursue the interests of justice respect for the courts and the rule of law However it is equally of the essence of the administration of justice that any person whose imprisonment is to be sought be given clear adequate and fair notice of the order he is alleged to have infringed and the manner in which he is alleged to have done so Nothing less can satisfy the requirements of law and justice Orders 113 In the light of the foregoing reasons I propose the following orders I would dismiss the appeal against the finding of contempt made by the High Court on 26th June 2012 by reference to paragraph 3 of the notice of motion dated 13th February 2012 and affirm that part of the order I would also dismiss the appeal against the imposition of three months imprisonment imposed by the order of 20th July 2012 and affirm that decision 114 I would order that that the coercive orders of 29th June be set aside insofar as it relates to the appellant save in respect of paragraph A ordering disclosure paragraph B granting liberty to apply for certain injunctions paragraph C providing for the appointment of receivers and paragraph J 31 a and b Each of these orders was capable of being justified by reference to the original finding of contempt Furthermore the appellant claimed on 20th July that he had complied with or was complying with those requirements Neither the disclosure order nor the appointment of the receiver figured significantly in argument on the appeal 115 There was no distinct consideration in the High Court on 20th July 2012 of the question of whether the appellant should be committed to prison until such time as he should purge his contempt in respect of his participation in the payment of US 500 000 the subject of paragraph 3 of the notice of motion considered on its own Thus the order now made does not prevent the Bank from making a further application to the High Court in that respect THE SUPREME COURT APPEAL RECORD No 372 2012 Denham C J Hardiman J Fennelly J O Donnell J McKechnie J BETWEEN IRISH BANK RESOLUTION CORPORATION LIMITED QUINN INVESTMENTS SWEDEN AB and LEIF BAECKLUND Respondents Plaintiffs AND SEAN QUINN CIARA QUINN COLETTE QUINN SEAN QUINN JUNIOR BRENDA QUINN AOIFE QUINN STEPHEN KELLY PETER DARRAGH QUINN NIALL MCPARTLAND INDIAN TRUST AB FORFAR OVERSEAS SA LOCKERBIE INVESTMENTS SA CLONMORE INVESTMENTS SA MARFINE INVESTMENTS LIMITED BLANDUN ENTERPRISES LIMITED MECON FZE CJSC VNESHKONSULT OOO STROITELNYE TECKNOLOGII OOO RLC DEVELOPMENTS and KAREN WOODS Appellant Defendants Judgment of Mr Justice Fennelly delivered the 24th day of October 2012 1 This appeal takes place against the backdrop of hugely extensive litigation not only in Ireland but in several other countries around the world between the Irish Bank Resolution Corporation formerly Anglo Irish Bank Corporation and various members of the Quinn family and their companies 2 This appeal however is brought only by the fourth named defendant Sean Quinn Jr against orders of the High Court Dunne J and concerns a comparatively narrow issue Firstly he says that there was no sufficient evidence before the High Court to justify the finding made namely that he had been involved in August 2011 in paying US 500 000 out of the account of a Ukrainian company QPU to a certain Ms Larissa Puga so as to amount to a contempt of a restraining order made by Clarke J on 20th July 2011 For that he was committed to prison by way of punishment for contempt of court for three months Secondly he says that the High Court having found him to be in contempt by participating in that transaction in any event exceeded its powers by requiring him to reverse or undo a large number of separate transactions in respect of which there was no contempt finding or even allegation against him Factual background and history 3 The First named plaintiff Irish Bank Resolution Corporation Ltd hereinafter the Bank or Anglo when referring to its former business has commenced this action under the name under which it was best known when it traded as a Bank Anglo Irish Bank Corporation 4 The background to the issues on the present appeal is explained in the judgment of Clarke J of 13th September 2011 Anglo Irish Bank Corporation PLC v Quinn Investments Sweden AB Ors 2011 IEHC 356 In that judgment Clarke J rejected a challenge by the defendants to the jurisdiction to maintain the action in this jurisdiction pursuant to Council Regulation EC No 44 2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 12 16 1 2001 P 1 the Brussels Regulation It is worth quoting the opening paragraph of that judgment Both the plaintiff Anglo and the group of companies the Quinn Group associated with many of the defendants were apparent stars of the Celtic Tiger years However the situation facing both has dramatically altered As is widely known Anglo is now in state ownership would be hopelessly insolvent but for state assistance is no longer involved in ordinary banking but is seeking to recover such loans as it can so as to minimise the ultimate exposure of the taxpayer Likewise the Quinn Group in its various component parts has been the subject of significant financial difficulty with the appointment of administrators and receivers to many companies within the Group 5 Anglo lent very large sums of money to members of the Quinn family or to companies in the Quinn group It is not disputed that there is a sum of some 450 million owing However there is a dispute about a claim by the Bank to recover a sum of some 2 8 billion advanced to a Quinn Finance a private unlimited Irish registered company within the Quinn Group said to be related to certain obligations under various contracts for difference or margin calls which had been entered into relating to shares in Anglo There is litigation in being in which various Quinn interests challenge the validity of that loan and of security granted by a number of Quinn companies in relation to it 6 Clarke J summarised the object of the present action as follows In the present proceedings Anglo seeks to prevent the Quinns acting individually or in a conspiracy or in concert with one another from inducing breaches of contract and intentionally causing loss to Anglo by unlawful means including taking actions which it is alleged will result in transferring assets of companies within the IPG to companies in another corporate structure for the purposes of denuding the IPG of its assets The reliefs sought by Anglo include orders restraining the Quinns from inducing procuring or facilitating breaches of Share Pledges or from taking steps to transfer assets or purporting to exercise rights attaching to pledged shares or to establish an alternative corporate structure Orders are also sought declaring that the Quinns hold certain assets as constructive trustees for Anglo and directing an accounting to Anglo of any such property or assets transferred 7 The underlying action alleges conspiracy against the defendants members of the Quinn family consisting of the entering into and putting into effect a scheme or coordinated plan designed to strip assets from various companies or other legal entities described as the International Property Group IPG over which Anglo had security 8 On the 27th June 2011 Anglo applied to the High Court ex parte for an interim injunction against the defendants designed to restrain them from taking further steps in furtherance of that alleged plan The matter was then made returnable for an interlocutory hearing before the High Court At an interlocutory hearing on the 20th July 2011 counsel for the defendants including the appellant agreed to give a number of undertakings which were in identical terms to the interim relief which had been granted This was without prejudice to the contention that Anglo was and is not entitled to the reliefs sought and that Anglo s concerns were unwarranted 9 The more specific subject matter of the present contempt proceedings relates to a part of the Quinn family empire which derived from the acquisition of a significant property portfolio largely based outside Ireland and held through a complex network of company structures in a number of countries Quinn Investments Sweden AB QIS a Swedish company was the vehicle through which that property portfolio was owned To quote Clarke J again QIS in turn had many ultimate subsidiaries including a number of Cypriot companies which in turn held the shareholding in companies in countries such as Russia Ukraine and India which latter companies directly owned the properties which formed part of the portfolio 10 On 20th July 2011 Clarke J made the order which I will call the Clarke J order to which the contempt hearing before Dunne J was referable It was made pending the determination of the issue of jurisdiction and if that issue was determined in favour of the plaintiffs pending the hearing of the action The terms of that order were that The Defendants be restrained forthwith whether by themselves or by their respective employees servants officers or agents or otherwise howsoever from 1 inducing or procuring or otherwise facilitating any person or corporate entity to breach share pledges entered into by the International Property Group of Quinn companies as referred to in the Affidavit of Richard Woodhouse with the Plaintiff or any guarantees given to or for the benefit of the Plaintiff in respect of the indebtedness of the International Property Group of Quinn companies as referred to in the affidavit of Richard Woodhouse 2 taking any step directly or indirectly that may have the effect of transferring any of the assets of Quinn Holdings Sweden AB Quinn Park Sweden AB Quinn Buildings Sweden AB Quinn Logistics Sweden AB Quinn Way Sweden AB Quinn Assets Sweden AB Quinn Management Sweden AB Quinn Interests Sweden AB Quinn Services Sweden AB Quinn Voyage Sweden AB Quinn Investments Sweden AB Kompania Finansstroy Investments LLC to any third party save to the extent that same may be done in the ordinary course of business 3 Directly or indirectly exercising or purporting to exercise any rights that attach to any shares that have been pledged to the Plaintiff save to the extent that such actions are consistent with the interests of the Plaintiff 4 Directing advising or causing the company Indian Trust AB registration number 556837 0695 to take any steps in respect of a purported shareholding or any other purported interest in the companies Quinn Holdings Sweden AB Quinn Park Sweden AB Quinn Buildings Sweden AB Quinn Logistics Sweden AB Quinn Way Sweden AB Quinn Assets Sweden AB Quinn Management Sweden AB Quinn Interests Sweden AB Quinn Services Sweden AB Quinn Voyage Sweden AB Quinn Investments Sweden AB Career Management Limited Kompania Finansstroy Investments LLC Krostein Investments Limited CJSC Logistica Samonaca Holding Limited and LLC Krasniy Sektor without the prior written consent of the Plaintiff 5 Taking any steps to implement or to progress proposals or to put into operation proposals that a corporate structure be established which mirrors the corporate structure of the Quinn family s International Property Group 11 The act of contempt alleged against the appellant in effect the payment of a sum of 500 000 out of a Ukrainian company was held by Dunne J to be a breach of the order I will call that the Quinn Junior contempt It will not be necessary to consider the detailed terms of the Clarke J order 12 The Clarke J order was served duly endorsed on the appellant s solicitors on 21st July 2011 The appellant accepted in evidence that the solicitors brought it to his attention 13 In September 2011 McCann Fitzgerald solicitors for the Bank commenced correspondence with Eversheds solicitors for the defendants including the appellant In September they expressed serious concern that steps had been taken by two of the defendants which had the effect of stripping certain named Russian companies Finanstroy and Red Sector of their assets These alleged inter alia that shareholdings of Cypriot companies were withdrawn that contrived debts were created by claimed arbitrations resulting in the self insolvency of well resourced subsidiaries I will not take up time and space to describe these matters at this point for two reasons Firstly allegations that these acts amounted to a contempt of the Clarke J order were made against other named members of the Quinn family but were not made against the appellant Secondly insofar as they relate to other members of the family it is preferable not to comment on them since they are not the subject of the present appeal 14 Those remarks need to be qualified in one respect only On 7th September 2011 McCann Fitzgerald inquired whether the appellant had been a General Director of one Russian company Logistica Eversheds wrote on 13th September 2011 confirming that he had been but that he had resigned on 4th July 2011 on account of the within proceedings The letter also denied any further involvement by their clients with Logistica after that date 15 On 2nd December 2011 McCann Fitzgerald wrote making the allegation which formed the subject matter of the Quinn Junior contempt allegation That letter contains the essence of the case with which this appeal is concern and the relevant part warrants being quoted in full Payment to former QPU General Director It has emerged that Sean Quinn Jr and Peter Quinn travelled to Kiev in late August 2011 While in Kiev they caused US 500 000 of the cash at bank of Quinn Properties Ukraine QPU to be transferred to the personal bank account of the then General Director of QPU Quinn Investments Sweden QIS is a 15 shareholder in QPU QPU is thus protected by the Order of Clarke J This dissipation of QPU s assets was in breach of the Order This arose in the following circumstances On 30 August 2011 Sean Quinn Jr and Peter Quinn attended at the Lenardo Business Centre in Kiev The Lenardo Business Centre is a valuable asset owned by QPU A resolution has been produced copy enclosed which purports to constitute a resolution of a shareholders meeting of QPU in GF on that day The resolution is however signed by Sean Quinn Sr and Peter Quinn as alternatively Chairman of Quinn Properties Sweden AB QPS a 0 5 shareholder in QPU and an alternative director of Quinn Office Sweden AB the 99 5 shareholder in QPU The Resolution which bears the company seal of QPU provides that Peter Quinn acted as chairman of the meeting and Sean Quinn as secretary and that Peter Quinn proposed the dismissal of the General Director of QPU Mrs Yanez Puga Larissa Nikolaevna in connection with commitment by her of guilty actions that provide grounds of losing confidence by the owner and the appointment of an alternative General Director Both voted for this unanimously According to the Resolution both also voted unanimously to conduct all payments to her in accordance with the legislation and to labor contract The labour contract provides that Mrs Yanez Puga was entitled to a payment of 500 000 and other generous benefits on termination of her contract Sean Quinn Sr and Peter Quinn had been notified as chairman and deputy director respectively of QPS that a shareholders meeting of QPS had been convened for 31st August for the purpose of considering a resolution to remove Sean Quinn Sr and Peter Quinn from the Board of QPS That resolution was passed on 31st August and they were so removed On 2nd September without the knowledge of the QPS Board the new General Director of QPU appointed by your clients on 30th August wrote to QPU s bank requesting the release of UAH 3 985 350 approximately US 500 000 from the short term deposit account of QPU On 5th September these funds were transferred to the account of the former General Director Mrs Yanez Puga described as payment of salary in that regard we enclose a copy of QPU s bank statement showing the payments made We understand that QPU which is no longer under the defendants control has lodged a criminal complaint with the Ukrainian prosecutor in respect of the misappropriation of these funds and we have been informed that the funds are frozen in Mrs Yanez Puga s account pending the criminal investigation We also enclose a copy of the purported labour contract to which the Resolution Refers Signed by Dara O Reilly and Sean Quinn Sr it provides that Mrs Yanez Puga s salary was US 563 per month up to 1 June 2011 which then suddenly increased to US 7000 per month The document purports to give Mrs Yanez Puga an entitlement in the event of termination of her contract to a compensation amounting to 500 000 00 and all possible compensation as well is to provide the medical insurance for the Director for three years On foot of this document your clients approved a payment of US 500 000 to the now sacked General Director of QPU and gave directions to the payment of this very substantial sum to her while considering it appropriate to dismiss her for guilty actions that provide grounds for losing confidence by the owner The payment of US 500 000 to a sacked General Director who until June 2011 was earning less than US 10 000 Per annum on the basis of the labour contract which at the very least raises questions as to its authenticity could in no way be presented as being in the ordinary course of business and this must have been clear to your clients at the time of directing the payment to her Your clients also knew that the cash at bank of QPU is protected by the Order and they knew that in divesting the company of these assets they were in breach of the Order 16 QPU Quinn Properties Ukraine is a company incorporated in the Ukraine the owner of a valuable office block the Leonardo building 17 In a letter of 13th December 2011 Eversheds denied that Sean Quinn senior Sean Quinn Jr or Peter Quinn had had been involved in any way or had any knowledge of the transfer of US 500 000 to Ms Puga They denied that Sean Quinn Sr or Peter Quinn had signed the minutes of a meeting of 30 August 2011 described as Minute No 21 or that they had ever seen that document It was denied that any such meeting had taken place as was recorded or that they had been parties to the alleged proposals or resolutions The letter explicitly stated These are not our client s signatures The letter went on to deplore the payment to Ms Puga saying that they shared the Bank s concern as to its appropriateness On the other hand they defended the increase in salary provided for Ms Puga in June 2011 saying that the management contract was not unusual and had been negotiated with the benefit of legal professional advice The letter did not say that the appellant and Peter Quinn had in fact been in Kiev on 30th August 18 In a letter of 6th January 2012 McCann Fitzgerald expressed surprise at the contention that the appellant had never had any role in QPU and that no such meeting had taken place as had been described in their letter of 2nd December They went on to assert that both the appellant and Peter Quinn were present on the QPU premises in Kiev on 30th

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  • there he attended a meeting with inter alia Ms Puga There is no specific statements on the part of any inferences can be drawn from those two facts They appear to me to be manifestly incapable of grounding an inference that Mr Sean Quinn Junior himself either directed or participated in the alleged payment to Ms Puga No such inference was set out in the judgment There were of course other findings about that payment but none that involved Mr Quinn Junior An omnibus approach 53 The appellant has put forward various discrete critiques of the decision in the High Court both in relation to the decision to convict him of criminal contempt and in relation to the sentence imposed It appears to me that most of these criticisms are aspects of a more general critique that the learned trial judge failed to focus on the specific case made against the appellant as opposed to the other two respondents or those respondents together with other persons not before the Court and therefore 1 Failed to give any or any proper attention to the fact that there was no evidence against the appellant of any one specific action done by him by way of directing or participating in the payment of U S 500 000 to Ms Puga but only of the two facts mentioned above 2 Took into account in the case against the appellant all of the evidence including evidence of statements and actions which were admittedly not those of the appellant but of other defendants 3 Took into account against the appellant on the general issue of guilty or not guilty evidence which she herself admitted into evidence only for specific purposes i e as to credibility or to show a state of mind 4 Found the appellant guilty not only of the single charge which the Bank had brought against him but of participation in a larger conspiracy the other respondents which not even the Bank had alleged against him Thus when counsel submitted that the appellant had been the subject of only one allegation the learned trial judge stated that all the respondents were involved in a conspiracy to deprive Anglo of access to assets She further said that although the appellant was involved in one aspect only he was involved in the overall strategy 54 That was certainly the Bank s view but it was not the allegation it had brought against Mr Quinn Junior 55 This is perhaps the most thorough going of the complaints made It suggests that in the course of a summary criminal trial as I have found the proceedings to be in which there was no evidence of any action by the appellant which either directed or facilitated the payment of 500 000 to Ms Puga the Bank fell back on a more general allegation that he was involved in a conspiracy and that he was involved in an overall strategy on the basis of which he was liable to be convicted despite the absence of specific evidence 56 It is hardly necessary to say how foreign to the basic principles of a trial conducted in due course of law these things are It is simply not permissible to bring a citizen before a court with the object of having him locked up on one charge only and then to fall back on the proposition that though there is no direct evidence on that charge there is evidence of a more general nature that he was up to no good or involved in an overall strategy whether or not it involved the allegation originally made against him 57 It is of course trite law that where co defendants are tried together that is for the purpose for administrative convenience and the saving of expense It does not mean that the acts statements or admissions of one co accused is admissible against another any more than the acts statements or admissions of a person who is not party to the proceedings at all are admissible The only general exception to this rule is in relation to conspiracy Thus in the well known Irish text book Criminal Law by Charlton McDermott and Bolger Dublin 1999 it is said at para 4 122 It is a rule of the law of evidence that the actions and statements of a conspirator done or made in pursuance of the conspiracy are admissible against his co conspirators This is an exception to the general rule that an act or statement by an accused is only admissible against his co excused if done or said in his presence in other words that the same rule applies in respect of what any person said or did in the presence of the accused The conspiracy rule would appear to work to the advantage of the prosecution Joinder of a conspiracy count where two or more accused are being charged with the substantive offence would appear therefore to operate gravely to the detriment of the accused 58 An even more basic rule is stated in the same work at para 4 189 p 300 Joint trials occur for administrative convenience and require an express instruction to the jury that each accused is to be tried only on the evidence admissible against that accused separately from the trial of any other accused 59 In the present case there was no allegation in terms or in substance of a conspiracy On the contrary the Notice of Motion is careful to distinguish between the activities attributed to each individual and particularly careful to distinguish between the single matter alleged against the appellant and the multiple matters alleged against the others also accused of contempt 60 But in the section of the judgment dealing with the sole allegation against the appellant pages 12 to 22 no attempt is made to distinguish the evidence against him from the evidence against the others allegedly involved It is said perhaps correctly that the issue in relation to Ms Puga focuses on two documents that lady s labour contract and the document referred to as Minute No 21 Neither of these documents can be connected to the appellant though there is evidence connecting them with one or both of the others accused of contempt Minute No 21 indeed purports to record the Minutes of a meeting in Kiev attended by Sean Quinn Senior and Peter Quinn but not the appellant The signatures on the document appear to be those of Peter Quinn and Sean Quinn Senior Alterations to the labour contract of Ms Puga are not in any way linked to the appellant 61 It is notable that the learned trial judge expresses her conclusions in this matter at p 22 in the following way I have come to the conclusion that Anglo has produced compelling evidence to establish beyond reasonable doubt that the attempted payment to Ms Puga was brought about by the respondents The signature of Sean Quinn Senior and Peter Quinn are on Minute No 21 The signature of Sean Quinn Senior is on Ms Puga s labour contract The main events which led to the transfer of that money occurred by coincidence one is asked to believe on the 30th August 2011 the day on which Peter Quinn and Sean Quinn Junior attended a meeting in Kiev with Ms Puga Emphasis added 62 It will be observed that this is an omnibus finding against the three respondents jointly and not against Sean Quinn Junior specifically The only specific mention of Sean Quinn Junior is as having attended a meeting in Kiev with Ms Puga on the 30th August 2011 Other observations about him are negative the judge did not believe his evidence that he and Peter Quinn did not discuss the purpose of their journey on the long flight to the Ukraine Disbelief on this point in no way adds to the capacity of the only two positive findings of fact made about Sean Quinn Junior to give rise to an inference that he directed or participated in the relevant payment 63 It is very noteworthy that the judgment a Does not indicate any single act that Sean Quinn Junior took by way of directing or facilitating the payment in question and b Does not indicate the necessity for Sean Quinn Junior participating in that payment which could just as easily on the evidence have taken place without his involvement 64 It is clear from the passage of the judgment to which I have referred that evidence exclusively referable to the two co accused such as the creation of the labour contract are part of the factual matrix which led to the finding against the appellant This in my view is wrong inadmissible and grossly prejudicial to the appellant It would have been quite possible if it had been thought necessary to bring against Mr Quinn Junior an allegation that he had breached the relevant orders by acting in concert with others But this was not done The same effect cannot be wordlessly achieved in the judgment without notice of any kind to the appellant any more than acts or statements of co accused are admissible without a charge of conspiracy 65 When the appellant was cross examined in relation to the actions of the other two accused his counsel naturally objected and emphasised that there was but one single allegation against the appellant The matter was extensively canvassed in argument but in the end the cross examination was permitted to proceed on the basis that it went to credibility to show a state of mind Answers in relation to collateral questions raised as to credibility are final the questioner is not allowed to contradict the witness 66 But even apart from that consideration it is trite law quite as trite as that relating to evidence against co accuseds that evidence admitted for one or more specific purpose does not thereby become admissible on the general issue This is a central point and was the subject of extremely forthright argument on the hearing of this appeal because it is central to the capacity to justify the finding made against the appellant 67 At the appeal Mr Paul Gallagher S C for the Bank contended baldly that once it s in it s in and no matter what the basis of admission it s in now and cannot be ignored I do not believe this position to be correct in law A leading Irish text book McGrath on Evidence puts it in this way at p 13 Sometimes the evidence may be admissible for a specific and limited purpose only For example under the hearsay rule out of Court statements are generally inadmissible to prove the truth of their contents However such a statement is admissible to prove the fact that it was made Where such evidence is admitted the trial judge should warn the jury of the limited purpose for which the evidence had been admitted 68 Speaking of evidence admitted as to credibility another leading Irish text Healy and Irish Laws of Evidence 2004 says at p 12 the statement may only be considered by the jury as evidence bearing upon the witness s lack of credibility or consistency but not as evidence probative of any of the facts at issue in the trial The failure of the trial judge to explain that the witness s pre trial account may not be considered when determining proof of the accused s guilt has led to the overturning of convictions on numerous occasions 69 It will thus be seen that the point of view summed up in the phrase no matter what the ground of admission it s in now was a crude one and unrepresentative of the law But it appears to me on a perusal of the judgment to be part of the basis on which the finding against the appellant proceeded Certainly there is no indication whatever of the exclusion from consideration on the general issue of evidence admitted for a limited purpose only Critiques of sentence 70 Quite separately from the above matters which relate to the circumstances in which the appellant was convicted of a common law misdemeanour contempt of court the appellant trenchantly criticises the approach to determining the proper sentence to be imposed on him Again not to put a tooth in it it is alleged that the learned trial judge on the express proposal of the Bank imposed an immediate custodial sentence on the appellant not for the purpose of appropriate punishment but for the principle purpose of putting pressure on his father who was one of the other respondents to comply with the course of orders which had been made against him I regret to say that this criticism appears to me to be substantiated 71 The appellant submits that on the 18th day of the hearing the 20th July 2012 the judge was invited by the Bank and actually did imprison the appellant in order to produce a coercive effect on his father The Bank submitted to the Court that it should consider on whom a punitive sanction immediate imprisonment should be imposed The Bank suggested that such a sanction should be imposed on the appellant and Mr Peter Quinn but that the first defendant should not go to prison immediately that he be there i e at liberty to take steps to ensure compliance with the order because it is certainly within his power to do so Day 18 p 11 72 The appellant protested at this on the basis that it made him a sort of hostage which was an improper purpose of incarceration and rather medieval as counsel put it 73 The learned trial judge then went on in the course of her ruling to say And what I propose to do therefore is to deal with matters by making an Order of Committal as requested by the Bank at this stage Far from being a medieval suggestion as suggested by Mr O Moore I think that this is a practical way of trying to encourage the situation in relation to compliance with the orders I am equally mindful of the fact that the position in relation to a punitive element is something that remains strongly in my mind as to how this matter ultimately will be dealt with Emphasis added 74 Thus the learned trial judge held that the sentence imposed was a practical way of trying to encourage the situation This practical way of doing this was adopted at the suggestion of the Bank In real life of course one does not encourage a situation but only a person The only conceivably relevant person to be encouraged was Sean Quinn Senior He was to be encouraged by locking up his son That is not a legally recognised basis of a just sentence But there is no other realistic construction of the Bank s proposals and the sentencing remarks 75 It might be said that the aspect of what the Court did that was in practice coercive of Mr Sean Quinn Senior was not so much the incarceration of Sean Quinn Junior but the deferment of a decision as to what sentence be imposed on him the father But this is quite inadequate as a theory to explain what happened when counsel for the appellant sought a stay on the order for the jailing of the appellant pending appeal 76 Although a summary criminal trial is unusual in the High Court it is in fact the commonest mode of criminal trial in the State usually conducted in the District Court When a person is convicted of a criminal charge in that forum he is prima facie entitled to a deferment of the sentence pending appeal This reflects the fact that he has been deprived of the normal protections of a criminal trial on indictment and in particular of the right to trial by jury But in this case the Bank insisted that the sentence be served immediately notwithstanding the appellant s intention to appeal and the reasons they gave for doing so are most instructive It was that a deferred sentence would be less practical and effective as an encouragement to resolve the situation than an immediate sentence commencing that very day Form of judgment 77 Apart from the foregoing there is an overarching criticism advanced by the appellant This is that the form of the judgment of the learned trial judge does not remotely comply with what is required by the ruling in Hay v O Grady cited above That is there is no statement of the Court s findings of primary fact no statement of the inferences drawn from them nor of the conclusions which follow 78 In a case such as the present an omission clearly to set out the findings of primary fact the inferences drawn from them and the conclusions is not a mere technical deficiency I have already set out what appears from a perusal of the judgment to be the only two express findings in relation to Sean Quinn Junior Though there are not described as findings of primary fact they appear to me to be in this category There is no statement of what inference is to be drawn from them and still more significant in a case like the present no statement of any other findings of fact from which inferences against the appellant was drawn 79 These are significant matters because it makes quite impossible to determine other than by speculation what facts were taken into account and what inferences were drawn from them 80 Mr Gallagher S C admitted that insofar as there was a non compliance with the strict requirements laid down in McFeely they should be excused on the basis that the Court has a discretion in light of the evidence now available not to exercise its discretion in favour of the appellant 81 I do not consider an appeal against a sentence of imprisonment summarily imposed to be an occasion for an exercise of a discretion I consider it to be an occasion for the strict observance of the established principles of the criminal law Conclusion 82 I would allow the appeal and set aside the finding of contempt 2012 IESC 51 THE SUPREME COURT Appeal Record No 372 2012 Denham J Hardiman J Fennelly J O Donnell J McKechnie J Between IRISH BANK RESOLUTION CORPORATION LIMITED QUINN INVESTMENTS SWEDEN AB and LEIF BAECKLUND Plaintiffs and Respondents and SEAN QUINN CIARA QUINN COLETTE QUINN SEAN QUINN JUNIOR BRENDA QUINN AOIFE QUINN STEPHEN KELLY PETER DARRAGH QUINN NIALL McPARTLAND INDIAN TRUST AB FORFAR OVERSEAS SA LOCKERBIE INVESTMENTS SA CLONMORE INVESTMENTS SA MARFINE INVESTMENTS LIMITED BLANDUN ENTERPRISES LTD MECON FZE CJSC VNESHKONSULT 000 STROITELELNYE TECKNOLOGII 000 RLC DEVELOPENTS and KAREN WOODS Defendants JUDGMENT of Mr Justice Hardiman delivered the 24th day of October 2012 1 This is the appeal of the fourth named defendant originally the fifth named defendant Sean Quinn Junior against certain sentences of imprisonment imposed upon him on the 20th July 2012 by the High Court Dunne J The orders are complex and not entirely consistent one with the other Accordingly rather than state their effect here I will set out the relevant portions below The case which the first named plaintiff the Bank made on the hearing of this appeal was that on the 20th July 2012 the plaintiff had been committed to prison for three months by way of penalty for criminal contempt and that on the same day he had separately been committed to prison for an unlimited period of time 2 Insofar as the indefinite sentence of imprisonment imposed in order to secure compliance with coercive orders made in the High Court is concerned I agree with the Order proposed by Mr Justice Fennelly to the effect that the coercive orders must be set aside The rest of this judgment accordingly is concerned with the punitive order of three months imprisonment In fact this sentence expired on Friday last having been served in full and without any remission by the appellant But he maintains this appeal as he is entitled to do for the purpose of attempting to set aside the order finding him guilty of a criminal contempt The sentence has been served in full and nearly all of it served before the result of the appeal was announced because the Bank objected to a stay being placed on the order pending appeal It is my view that this action of the Bank and the language in which its objection was phrased casts considerable light on its true motivation for pursuing with avidity the imprisonment of the appellant 3 The first named plaintiff in this matter the Irish Bank Resolution Corporation Limited is the successor insofar as these proceedings are concerned to Anglo Irish Bank Anglo was to all appearances one of the stars of the Celtic Tiger years Its growth was extraordinary in its rapidity and extent Its fall was so rapid that during the year 2008 its shares were found to have lost 99 of their value When in September 2008 after the collapse of Lehmann Brothers Anglo was about to collapse the Government took the view that it was simply too big to be permitted to fail and decided on the guarantee of Anglo and the other Irish Banks the cost of which for good or ill has dominated the Irish economy since the 29th September 2008 and seems likely to do so for years to come 4 The Quinn group of companies with which many of the individual defendants are intimately associated and which Mr Sean Quinn Senior founded was equally a star of the Celtic Tiger era It started in the cement business and rapidly expanded to the point where it ran an enormous insurance company and acquired an extraordinary portfolio of property assets mostly abroad It too has collapsed and administrators and receivers have been appointed to many of the companies in the group Mr Sean Quinn Senior and his family connections have been effectively divested of control of the companies and there has been extensive litigation between the Bank and the companies and the individual members of the Quinn family It is correct to say that this litigation has been fought on both sides with extraordinary bitterness 5 Each side considers that the other has perpetrated grave injustices against it The Bank considers that the Quinn interests have failed to discharge their liabilities to Anglo and thus significantly increased the difficulties which affect that company its creditors and successors The Quinns consider that Anglo have ruined them by treating them in a cynical and manipulative fashion and in particular by inducing certain of them to borrow money for the purpose of attempting to prop up the Anglo share price by the purchase of its shares when the latter were in or approaching freefall They consider that the proceedings taken against them are an attempt to saddle them with losses largely caused in the first place by their involvement wittingly or otherwise in an Anglo devised and Anglo promoted scheme to save Anglo itself They consider that enormous sums covered by the loan contracts which Anglo are attempting to enforce are tainted with illegality by Anglo s own actions that the Bank has acted unlawfully and destroyed the Quinn group in the process There are criminal proceedings outstanding about some aspects of the Bank s dealings with the Quinns 6 The Quinns do not deny that in those circumstances they or certain of them attempted to remove their assets lawfully as they see it from the capacity of Anglo to lay hands on them They deny however that they did so in a manner or at a time that was in breach of any Court order 7 In February of this year the Bank issued a Notice of Motion directed at the jailing of Sean Quinn Senior Sean Quinn Junior and Peter Darragh Quinn for contempt of court Sean Quinn Senior and Peter Darragh Quinn were accused of six actions constituting in summary breaches of the Courts orders which they say were directed at protecting their security Sean Quinn Junior was allegedly involved in one such action only involving a payment of 500 000 to a lady Ms Puga with a role in a Quinn associated company in Ukraine Accordingly Sean Quinn Junior was on the basis of the Bank s own motion apparently the least involved in what the Bank alleged to be an unlawful scheme to defeat their claims Nonetheless on the proposal of the Bank it was Sean Quinn Junior who went to jail while the proceedings against his father were adjourned 8 It is manifest that the Quinns have questions to answer in legal proceedings and perhaps otherwise about the matters which are the subject of the dispute between the Bank and themselves It is at least to me no less obvious that the Bank has questions to answer both in the legal actions in which issue has been joined and in a wider forum as well But the Bank will not have to answer questions while the legal focus remains exclusively on their application to jail the Quinns This is part of the litigious advantage which may derive from bringing a contempt application against one s opponents Publicity 9 It is a feature of the present phase of the litigation that both at the time of the High Court proceedings and at the time of the appeal to this Court significant evidence which the Bank intended to deploy was widely and one sidedly publicised having somehow come into the possession of media organs firstly The Mail on Sunday and secondly the Irish Times When evidence is deployed in court the response of the other side will normally be virtually immediate and media coverage of the case must therefore cover both sides simultaneously But when evidence on one side is published to the media without the other side being able to reply one party derives significant litigious advantage and the other is correspondingly damaged One sided publicity especially for highly dramatic allegations is sometimes aimed at building up a head of steam in favour of one party and against the other There is of course no evidence to show how this material came into the hands of the media before it was opened in court but as Mr O Moore S C for the appellant said in the course of the hearing there was no conceivable reason for his side to leak it It does not necessarily follow from that that the Bank were responsible for the one sided publicity There are other possibilities which are not beyond the bounds of possibility The Orders of Imprisonment 10 There are no fewer than three orders of the High Court relating to the incarceration of the appellant They reveal a confused and contradictory picture 11 The first is entitled Order of Committal in cases other than judgment debtors This is addressed to the members of An Garda Siochana and recites Whereas lately in the High Court it was adjudged that Sean Quinn Junior for default by his failure to comply with the orders of the High Court made on various dates between the 27th June 2011 and the 20th July 2011 together with the order dated the 29th June 2012 was guilty of contempt of the High Court and do stand committed to prison for the said contempt 12 The effect of part of the Order is then set out You are hereby commanded to arrest the said Sean Quinn Junior and thereupon to lodge him in Mountjoy prison there to be detained for a period of three months from the date hereof unless discharged in the meantime pursuant to further order of the High Court Emphasis added 13 This Order is dated and was apparently perfected on the 20th July 2012 It prescribed committal to prison for a fixed and limited period of three months namely for a period of three months This is a sentence of three months for criminal contempt there is nothing about an indefinite coercive committal for an unlimited period 14 On the same day however there is another Order in the same proceedings which after certain introductory recitals says And said counsel for the plaintiff intimating to the Court that there is non compliance on the part of the said defendants with the terms of the said order 15 The Order continues And the Court being satisfied that the said second fifth and ninth named defendants herein are guilty of contempt for failure to comply with the said interim and interlocutory orders of the High Court The Court doth adjudge that the said second fifth and ninth named defendants are guilty of contempt of court for failure to comply with the interim and interlocutory orders of the High Court made on various dates between the 27th June 2011 and the 20th July 2011 together with the said order dated the 29th June 2012 16 The effective portion of the Order is then made in the following terms And accordingly it is ordered that the said plaintiff be at liberty to issue Orders of Committal 2 directed the Commissioners and members of the Garda Siochana and to the Governor of Mountjoy Prison against the said fifth and ninth named defendants to arrest them and thereupon to lodge them in the said Mountjoy Prison there to be detained for a period of three months Liberty to apply to the said defendants in the event of them wishing to purge their contempt in the course of the said detention period And on hearing said counsel for the defendants on the issue of a stay on the order committing the said defendants to prison And said counsel for the plaintiff opposing same The Court doth refuse same Emphasis added 17 This is a sentence of three months but with liberty for the prisoners to apply to purge their contempt This suggests a coercive sentence for Civil contempt capped at three months This is different in nature and meaning to the first order But the confusion does not end there 18 There is then a third Order of the High Court in the same matter dated the 20th day of July 2012 but said to be perfected on the 30th day of July 2012 Perfecting is the process whereby an order is formally done up and issued as an order of the Court 19 This Order appears to be corrective of the previous Order whose effect is summarised above This third Order recites Upon reading the Order herein of even date and it appearing that there is an omission therein concerning the non reference to the term of imprisonment imposed in respect of the coercive element of this Order as against the fifth and ninth defendants therein And notwithstanding the punitive element of the said Order in respect of which a three month term of imprisonment was imposed on the said fifth and ninth named defendant they having been found guilty of contempt of court for failure to comply with the said interim and interlocutory Orders of the High Court made on various dates between the 27th June 2011 and the 20th July 2011 together with the Order herein dated the 29th June 2012 10 22 It is ordered that the said plaintiff be at liberty to issue Orders of Committal 2 directed to the Commissioner and members of the Garda Siochana and to the Governor of Mountjoy against the said fifth and ninth named defendants to arrest them and thereupon to lodge them in Mountjoy Prison there to be detained for an unlimited period of time until they come before the Court and purged their contempt in respect of the coercive elements of the said Order Emphasis added 20 These Orders appear to me to evidence an unfortunate level of confusion on the important topic of for how long the appellant was ordered to be imprisoned and for what 21 It is well established in the authorities set out below that punitive imprisonment imposed for a criminal contempt of court must be for a finite fixed period of time 22 On the other hand coercive imprisonment in order to enforce compliance in the future with a court order is imposed for civil contempt and can be indefinite in duration 23 It appears to me that the difficulties which have arisen in relation to the Order are based on an unfortunate degree of confusion between civil and criminal contempt The last Order that perfected on the 30th day of July 2012 after the defendant had commenced his sentence recited that there was an omission in relation to the first Order bearing the date 20th July 2012 and perfected ten days earlier than the rectifying Order This omission is concerning the non reference to the term of imprisonment imposed in respect of the coercive element of this Order as against the fifth and ninth named defendants It is only in the third order that the spectre of imprisonment for an unlimited period of time is introduced To make room for it the three month sentence is consigned unambiguously in my view to the status of a fixed sentence for criminal contempt as it had been in the first but not in the second perfected order 24 My reasons for the foregoing conclusions are as follows The previous Order of the 20th day of July 2012 does contrary to what is recited in the third Order appears to me to contain a reference to coercive imprisonment As appears from the extract from it set out above the appellant was directed to be lodged in Mountjoy Prison there to be detained for a period of three months but was given liberty to apply in the event of wishing to purge his contempt in the course of the said detention period A period of imprisonment in respect of a contempt which can be purged by compliance with an Order appears to me manifestly to be coercive and not punitive Therefore it appears to me that the third Order is incorrect in referring to an omission concerning the non reference to the term of imprisonment imposed in respect of the coercive elements of this Order But the practical effect of the third Order is dramatic Instead of a term of imprisonment of three months capable of being terminated by purging the contempt the appellant is in the third Order sentenced to be lodged in Mountjoy Prison there to be imprisoned for an indefinite period of time The three month sentence is stated to be punitive and fixed in duration 25 These are manifestly entirely different things But the appeal appeared to me to be conducted on behalf of the Bank at whose request the appellant was imprisoned on the basis that he received a three month sentence by way of punishment for criminal contempt and an indefinite coercive sentence to ensure compliance with the Orders of the Court But this is by no means clear from the Orders Contempt of Court Criminal and Civil 26 The Irish law of contempt of court is amorphous It is extremely difficult for a lay person to understand principally because the term contempt of court is used inexplicably to mean several quite different things and it is not always clear which of them is intended Even when the term is used by lawyers and even judges the distinctions are not always clear In part this is because from the point of view of a party seeking to use the law of contempt to have another person fined compelled to comply with onerous requirements or imprisoned it can be advantageous to cultivate a certain vagueness in the law so as to avoid the strict requirements normally and correctly imposed on a person

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