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  • states and to borrow money and the ESM will support member states in financial difficulties 17 v Under the ESM Ireland will have a financial liability The Dáil has already permitted a maximum liability of 11 145 400 000 section 3 of the European Stability Mechanism Act 2012 which constitutes Ireland s capital subscription Article 8 1 and Annex II of the ESM Treaty This figure is divided into paid in and callable shares According to Article 8 2 of the ESM Treaty Ireland s subscription to be paid in amounts to 1 273 760 000 which as set out in Article 41 1 is to be paid in five annual instalments of 254 752 000 or if Article 42 2 applies to be paid at an accelerated rate The callable shares are the remainder and amount to 9 871 640 000 i e the difference between the paid in amount and the capital subscription This remainder may be called in in accordance with the provisions in Article 5 6 c and Article 9 of the ESM Treaty However a decision to change the authorised capital stock and thereby for example increase Ireland s capital subscription beyond 11 145 400 000 requires to be made by the unanimous decision of the Board of Governors Article 5 6 d and Article 10 Also this requires the completion of national procedures which in Ireland is the approval of Dáil Éireann and amendment of the Act of 2012 Thus any increase in the financial liability of Ireland would require the unanimous decision of the Board of Governors and Irish national procedures including the amendment of the Act of 2012 17 vi On the matter of financial support Ireland could request financial assistance If the State applied for such funding any terms for such funding would be required to be within the constitutional ambit The Government has a duty to ensure that by its decisions and actions the terms of the Constitution are not infringed 17 vii Neither of the above functions impinges upon the economic or monetary sovereignty of the State 17 viii The policy of the ESM Treaty is clearly defined in the treaty and the State has agreed to that policy of safeguarding the financial stability of the euro area as a whole and of its member states through the mechanisms provided for in the treaty The State has agreed to a specific policy and the mechanism of implementation which are grounded by a specified maximum financial contribution 17 ix The appellant argued that the State has abdicated some of its decision making competency in foreign policy in a manner that is an unconstitutional derogation of the State s sovereignty However the decisions from which the State may be excluded or vote against without impact on the result for example by virtue of a loss of voting rights or the impact of qualified majority or simple majority voting are decisions concerning the implementation of the policy and are not decisions that i determine policy ii create a mechanism of policy determination or iii increase the State s specified maximum financial contribution 17 x The decisions of particular concern to the appellant arise in very specific circumstances The State may be excluded from voting under Article 4 8 by failing to make a payment required under Articles 8 9 10 16 or 17 However if Ireland found itself in such a position it would not incur increased financial liability beyond the maximum contribution specified in s 3 of the Act of 2012 without the approval of Dáil Éireann the amendment of the Act of 2012 and the notification of the Depositary of the completion of these steps Consequently such a situation would not diminish the State s sovereignty 17 xi In addition the appellant raised the fact that mutual agreement is not required under the emergency procedure provided for in Article 4 4 and in such a situation a decision affecting Ireland could be made in the State s absence While in the general course the treaty provides for unanimous decisions to grant or implement financial assistance circumstances of urgency create contingency voting requirements of 85 of votes cast if the economic and financial sustainability of the euro area is threatened Such a situation would arise only if the European Commission and the ECB both considered that a failure to urgently make a decision to grant or implement financial assistance would threaten the economic and financial sustainability of the euro area The policy remains the same and indeed more concentrated i e the consideration is the sustainability of the euro area rather than the stability of the euro area as a whole and of its member states Article 4 4 implements a specific policy of the ESM Treaty through a specified mechanism within the limits of the specified maximum financial contribution Consequently such a situation does not diminish the State s sovereignty 17 xii Thus in relation to this limb of the appeal it is clear that the relevant policy was determined by the Irish executive and legislature The State has not ceded policy making for the future The State has not ceded power to another institution to enable the creation of policy in the future Nor has the State ceded to elsewhere the power to increase the State s financial contributions Consequently there has been no transfer of sovereignty to any degree which is incompatible with the Constitution To refer to the analysis by Walsh J in Crotty there has not been an abdication of freedom of action or to bind the State in its freedom of action in its formulation of foreign policy Nor in reference to the judgment of Henchy J in Crotty has there been any attempt by the Government to make a binding commitment to alienate to other States the conduct of foreign relations Nor has there been any attempt at a fundamental transformation or diminution of sovereignty such as arose in the Crotty case Nor in reference to the judgment of Hederman J in Crotty is this an agreement to subordinate or submit the exercise of the powers bestowed by the Constitution to the interests of other States Rather it is an election by the Government of a policy in union with other States in pursuit of an identical policy 17 xiii The decision by the Government to enter into the ESM Treaty was a policy decision of the Government an exercise of the executive power pursuant to the Constitution The role of the Court is only to determine whether powers exercised under the Constitution have been exceeded For the reasons stated I am satisfied that they have not been exceeded on this issue As to the policy the Court has no role in relation to the policy itself the policy is a matter for the Government Injunction Issue 18 Counsel for the appellant argued two issues before the Court in relation to the application for an interlocutory injunction first that C 106 77 Simmenthal II 1978 ECR 629 which found that there was a duty to set aside provisions of national law which are incompatible with EU law usurped the traditional test of Campus Oil Ltd v Minister for Industry and Energy No 2 1983 I R 88 referred to as Campus Oil in the circumstances of this case second that there would be irreparable damage if the injunction sought was not granted In written submissions in support of the first issue reliance was placed on C 213 89 Factortame ECR 1 2433 and C226 99 Siples 2001 ECR 1 277 to argue that this Court s obligation was to ensure the full effectiveness of EU law including the judgments of the European Court of Justice and that interim relief is a tool to be used in fulfilling that obligation Counsel argued that there were serious doubts concerning the compatibility of the ESM Treaty with EU law upon which the European Court of Justice would provide preliminary rulings following the reference procedure that this Court was acting as a court of the EU by referring questions to the European Court of Justice and therefore should apply Simmenthal II jurisprudence to preserve Ireland s status as in conformity with EU law and that once the ESM Treaty enters into force it would be immune from national judicial proceedings and counsel argued that the ESM Treaty was irreversible In addition counsel argued that if the ESM Treaty was found unlawful the State would have acted in defiance of the rule of law the State had no method to reverse its commitment to the ESM Treaty and the State would have paid money into the ESM 19 Counsel for the State argued that the correct test was Campus Oil as informed by the joined cases of C 143 88 C 92 89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn 1991 ECR I 415 referred to as Zuckerfabrik Counsel argued that the case before the Court concerns an international treaty that the ESM Treaty does not require the European Council Decision for ratification that the State would be bound by a decision of the Court following consideration of the preliminary ruling of the European Court of Justice if it were in the appellant s favour that the appellant would suffer no damage from ratification and that the State would risk incalculable harm if the injunction was granted and the treaty came into force in circumstances where the appellant has not given an undertaking as to damages Counsel also sought to distinguish the decision in Crotty on the basis that the Court there accepted that the appellant would be left without a remedy in the absence of an injunction that the State did not argue the urgency of ratification and that the duration of the injunction was seven weeks from application to judgment 20 There were affidavits before the High Court which refused an injunction and this Court In an affidavit by Jim O Brien Second Secretary General of the Department of Finance deposed on behalf of the State on the 27th June 2012 he stated inter alia 14 I say and believe and have been advised by my legal advisors that the need for the ESM is urgent and the Government believes that it is essential in the national interest that Ireland should be a member of the ESM from the outset 17 There are of course important reasons of policy and national and broader EU interests for ratifying the ESM at the earliest possible stage The Euro Area Member States including Ireland have announced their intention to ratify the ESM in July specifically on 9th July 2012 It is important that Ireland should be in a position to be in the vanguard of the countries ratifying the ESM and to be a member from the outset It is critical that the ESM should have the largest possible capital base from the outset and Ireland s contribution though relatively small is important in the aggregate Of equal importance is the fact the decisions of substance in the ESM are taken by mutual agreement If Ireland is not a party from the outset it will not have the ability to participate in and vote on the early decisions of the ESM 18 For these reasons it is the considered view of the Government that it is essential and imperative for Ireland and for the euro zone as a whole that the ESM enters into force in accordance with the envisaged timetable and also that Ireland should be a member from the ESM s initial entry into force for which the target date is 9th July 2012 The essential interests of Ireland and of the Union in the stability of the euro zone are in issue and the establishment and creation of the ESM is regarded by all Member States but particularly those whose currency is the euro as well as by the European Commission the European Central Bank and the European Parliament as an essential component in the ongoing efforts to achieve that stabilisation Those interests could be seriously damaged if the State is injuncted from ratifying the ESM Treaty 19 On the other hand I say and believe that the appellant would suffer no personal irreparable other harm whether financial or otherwise including irreparable harm to him in his capacity as a member of Dáil Éireann by ratification of the ESM Treaty by Ireland if the CJEU were ultimately to decide that the said Treaty were incompatible with Union law 20 If Ireland were prevented from ratifying the ESM Treaty this could impact very detrimentally on Ireland s proposed re entry to the financial markets and on the State s capacity to raise the funding it needs to run the country going into 2014 This would represent a serious setback to the substantial progress made to date towards completing and exiting this programme by the end of 2013 I say therefore that the balance of convenience in this case favours a refusal by this Honourable Court of the injunctive relief now sought by the appellant 21 Although Ireland is not under a Union law obligation to approve the European Council Decision 201 1 199 EU before 1st January 2013 it is obliged thereunder to take the step necessary to secure in accordance with the necessary constitutional requirements Ireland s approval The Government considers that there is no reason why it should delay taking a decision to notify Ireland s approval of the European Council Decision to the Secretary General of the Council once the Oireachtas has enacted the European Communities Amendment Bill 2012 The Government considers that delaying the said notification would introduce an element of uncertainty whether legal or in the markets at a time of economic instability and that this would be contrary to the vital national interests of Ireland in the present deeply uncertain times Furthermore the State recognise the legality of the European Council Decision which was adopted unanimously by all of the Member States of the Union and approved by all of the institutions involved in and consulted its adoption under Article 48 6 of the TEU and thus the legality of the proposed amendment to Article 136 TFEU not least for the reasons already set out above If this Honourable Court ultimately determines that the appellant may maintain his challenge in these proceedings to the validity of that Decision and that the Court has sufficiently serious doubts as to the Decision s validity such as might require it to refer the question of its validity to the CJEU that Court has power to deal with the temporal effects of its judgment if it ultimately determines that the Decision is invalid The State respectfully consider that there would therefore be neither a need nor a justification for this Court to prevent the Government from notifying Ireland s approval of the Decision as proposed Decision on Injunction 21 The appeal by the appellant of the refusal of interlocutory relief by the High Court is a relief sought pending the determination of the reference for preliminary ruling by the Court of Justice because of the Court s ruling on the first two issues determined in this appeal 22 The appellant s argument that Simmenthal II Factortame and Siples require this Court to grant an injunction without the framework of Campus Oil is not well founded as in the instant case this Court has the capacity to grant an injunction 23 The longstanding test to guide the Court in the exercise of its discretion as to whether to grant an interlocutory injunction was stated in Campus Oil which I would apply In Campus Oil O Higgins C J stated at pp 105 to 106 Interlocutory relief is granted to an applicant where what he complains of is continuing and is causing him harm or injury which may be irreparable in the sense that it may not be possible to compensate him fairly or properly by an award of damages Such relief is given because a period must necessarily elapse before the action can come for trial and for the purpose of keeping matters in statu quo until the hearing The application is made on motion supported by affidavit In cases where rights are disputed and challenged and where a significant period must elapse before the trial the court must exercise its discretion to grant interlocutory relief with due regard to certain well established principles Not only will the court have regard to what is complained of and whether damages would be an appropriate remedy but it will consider what inconvenience loss and damage might be caused to the other party and will enquire whether the applicant has shown that the balance of convenience is in his favour 24 At the kernel of the discretion to be exercised is the balance of convenience to be achieved I am satisfied that a significant but not determinative factor in this case is the described Government policy and its consequences as stated in the affidavit of Jim O Brien which has been referred to earlier in this judgment 25 I agree with the judgment of O Donnell J in his analysis of the jurisprudence on the granting of interlocutory injunctions and his conclusion that the balance of convenience on any view weighs heavily against the grant of an injunction in these circumstances The appellant s claim has been addressed with considerable expedition in the High Court this Court and the Court of Justice of the European Union which process will provide a very speedy resolution of the issues raised by the appellant and pending the final outcome of those proceedings the challenged measures should remain in place Conclusion 26 On the first issue applying the principles stated in Crotty to the facts of the case I am satisfied that the Government did not abdicate alienate cede or subordinate its power to another The decision of the Government to enter into the ESM Treaty was a policy decision within its executive power pursuant to the Constitution and so did not involve an impermissible transfer of sovereignty As to the application for an injunction for the reasons stated I am satisfied that it was not appropriate to grant an injunction THE SUPREME COURT Appeal No 339 2012 Denham C J Murray J Hardiman J Fennelly J O Donnell J McKechnie J Clarke J Between Thomas Pringle Plaintiff Appellant and The Government of Ireland Ireland and the Attorney General Defendants Respondents Judgment delivered on the 19th day of October 2012 by Denham C J 1 Thomas Pringle the plaintiff appellant referred to as the appellant appealed to this Court the judgment of the High Court Laffoy J delivered on the 17th July 2012 and the orders made on foot of the said judgment which were perfected on the 18th July 2012 2 On the 24th July 2012 and on the 26th July 2012 as a matter of urgency this Court heard submissions on three issues arising in the appeal The three issues were a Whether the European Stability Mechanism Treaty done at Brussels on the 2nd February 2012 referred to as the ESM Treaty involves a transfer of sovereignty to a degree that makes it incompatible with the Constitution when one applies the principles set out by this Court in Crotty v An Taoiseach 1987 I R 713 such that a referendum amending the Constitution is necessary to permit the State to ratify the ESM Treaty on behalf of Ireland b Whether the Supreme Court should refer to the Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union referred to as the TFEU the question of the validity of European Council Decision 2011 199 EU of 25th March 2011 referred to as the European Council Decision and the question of whether Ireland by entering into and ratifying the ESM Treaty would undertake obligations incompatible with the Union Treaties c Whether the Supreme Court should grant an interlocutory injunction pending the final determination of these proceedings restraining the State from ratifying the ESM Treaty 3 The Court considered these three issues and gave its ruling on the 31st July 2012 and reserved its reasons for publication in judgments to be delivered at a later date i On the first issue considered as a matter of urgency the Court was of the opinion that the ESM Treaty does not involve a transfer of sovereignty so as to make it incompatible with the Constitution when applying the principles set out in Crotty v An Taoiseach 1987 I R 713 referred to as Crotty such that a referendum amending the Constitution is necessary to permit the State to ratify the ESM Treaty on behalf of Ireland The decision of the Court was to treat the ESM Treaty as one which does not involve any impermissible transfer of powers from the Executive ii On the second issue the Court made a reference seeking a preliminary ruling to the Court of Justice of the European Union on a number of questions arising on the validity of the European Council Decision and querying whether a member state of the European Union whose currency is the euro is entitled to enter into and ratify an international treaty such as the ESM Treaty and querying if the European Council Decision is held as valid is the entitlement of a member state to enter into and ratify an international agreement such as the ESM Treaty subject to the entry into force of that Decision As a consequence of the reference issues raised by this aspect of the appeal were adjourned until the Court receives the ruling of the Court of Justice The Court of Justice has agreed to apply the accelerated procedure to the reference The provisional date for the oral hearing by the Court of Justice is the 23rd October 2012 iii On the third issue the Court noted that the appeal by the appellant of the refusal of interlocutory relief by the High Court was then because of the Court s ruling on the first two issues a relief sought pending the determination of the reference for preliminary ruling by the Court of Justice Consequently as regards the EU law issues while the fundamental test is that stated in Campus Oil Ltd v Minister for Industry and Energy No 2 1983 I R 88 it should be informed by decisions of the Court of Justice including the joined cases of C 143 88 C 92 89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn ECR I 415 as well as C 465 93 Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernährung and Forstwirtschaft 1995 ECR I 3761 Applying the relevant criteria the Court was not satisfied that it was appropriate to grant an injunction In particular it was considered that should the appellant be successful on the preliminary reference then that would be an adequate remedy Consequently the Court refused the application for an interlocutory injunction restraining the State from ratifying approving or accepting the ESM Treaty pending the final determination of the proceedings 4 It was stated that judgments on the matters referred to in paragraph 3 i and iii above would be delivered at a later date This is my judgment on the two issues There are other issues on the appeal but it was not considered necessary to have those issues determined urgently and therefore those issues which are referred to later in this judgment in the section High Court Judgment were not before the Supreme Court at this time Constitutional Issue 5 The first issue is whether the ESM Treaty involves a transfer of sovereignty to a degree that makes it incompatible with the Constitution when one applies the principles set out by this Court in Crotty such that a referendum amending the Constitution is necessary to permit the State to ratify the ESM Treaty on behalf of Ireland Background 6 The background to these proceedings was set out by the learned High Court judge in the judgment of the 17th July 2012 I gratefully adopt those findings 6 i These proceedings were initiated by a plenary summons which issued on 13th April 2012 The appellant is a citizen of Ireland a member of Dáil Éireann and a citizen of the European Union hereinafter referred to as the EU In essence the appellant challenged the validity under EU law and Bunreacht na hÉireann of a a decision of the European Council proposing a Treaty amendment b a Treaty entered into by the seventeen euro area Member States of the European Union and c the appellant also initially challenged the validity of a Treaty which since the proceedings were commenced in the High Court was approved of by the People in a referendum held on 31st May 2012 6 ii Because of the importance of the issues raised in the proceedings the hearing of the proceedings was expedited in the High Court It commenced on 19th June 2012 and concluded on 29th June 2012 While the matter was at hearing various events occurred which were of relevance to the proceedings for instance the referendum referred to above and the enactment of three Acts of the Oireachtas The judgment of the High Court was based on the state of affairs as they existed on 9th July 2012 6 iii The learned High Court judge identified in chronological order the acts and instruments the validity of which the appellant impugned either as to validity or as to incompatibility with EU law or to the Constitution or both Decision 2011 199 EU 6 iv Article 48 of the Treaty on European Union which is referred to as the TEU deals with the manner in which the TEU and the TFEU may be amended Article 48 1 provides that the Treaties may be amended in accordance with one of two procedures an ordinary revision procedure the requirements of which are outlined in Article 48 2 to 5 and a simplified revision procedure The limited application and the procedural requirements of the simplified revision procedures are outlined in Article 48 6 which provides The Government of any Member State the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the TFEU relating to the internal policies and action of the EU The European Council may adopt a decision amending all or part of the provisions of Part Three of the TFEU The European Council shall act by unanimity after consulting the European Parliament and the Commission and the European Central Bank in the case of institutional changes in the monetary area That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties 6 v Prior to the decision referred to in the next paragraph Article 136 of the TFEU which provision is contained in Chapter 4 of Title VIII of Part Three provided as follows 1 In order to ensure the proper functioning of economic and monetary union and in accordance with the relevant provisions of the Treaties the Council shall in accordance with the relevant procedure from among those referred to in Articles 121 and 126 with the exception of the procedure set out in Article 126 14 adopt measures specific to those Member States whose currency is the euro a to strengthen the coordination and surveillance of their budgetary discipline b to set out economic policy guidelines for them while ensuring that they are compatible with those adopted for the whole of the Union and are kept under surveillance 2 For those measures set out in paragraph 1 only members of the Council representing Member States whose currency is the euro shall take part in the vote A qualified majority of the said members shall be defined in accordance with Article 238 3 a 6 vi The European Council by a decision of 25th March 2011 Decision 2011 199 EU which was published in the Official Journal of the European Union on 6th April 2011 adopted a decision to amend Article 136 TFEU in accordance with the simplified revision procedures provided for in Article 48 6 TEU Decision 2011 199 EU having recited that a the European Council had consulted the European Parliament the Commission and the European Central Bank on the proposal in accordance with the second subparagraph of Article 48 6 and that each of those institutions respectively adopted opinions on the proposal and b the proposed amendment concerns a provision contained in Part Three of the TFEU and it does not increase the competences conferred on the Union in the Treaties set out the decision adopted by the European Council Article 1 mandates the addition of a paragraph in the following terms to Article 136 3 The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole The granting of any required financial assistance under the mechanism will be made subject to strict conditionality Article 2 makes provision for the Decision and thereby Article 1 to have legal effect as follows in paragraph 2 of Article 2 This Decision shall enter into force on 1 January 2013 provided that all notifications referred to in the first paragraph have been received or failing that on the first day of the month following receipt of the last of the notifications referred to in the first paragraph The notifications referred to are notifications by member states of the completion of the procedures for the approval of this Decision in accordance with their respective constitutional requirements 6 vii The European Communities Amendment Act 2012 referred to as the Amendment Act of 2012 was enacted after the High Court hearing was concluded but before the High Court judgment was due to be given Section 1 of the Act amends s 1 of the European Communities Act 1972 by substituting the following definition for the definition of treaties governing the European Union treaties governing the European Union means a the TEU b the TFEU c the Lisbon Treaty and d the treaties governing the European Communities other than the provisions to which the first paragraph of Article 275 of the treaty referred to in paragraph b applies as amended by i ii Decision 2011 199 EU of 25 March 2011 amending Article 136 of the TFEU with regard to a stability mechanism for Member States whose currency is the euro iii iv Section 2 3 provides that the Amendment Act of 2012 shall come into operation on such day or days as the Minister for Foreign Affairs and Trade may appoint by order 6 viii The initial reliefs sought in the statement of claim by the appellant based on the alleged invalidly of Decision 2011 199 EU with EU law and the Constitution were a a declaration that the proposed amendment of Article 136 TFEU constitutes an impermissible and unlawful amendment of the TFEU by reason of such amendment fundamentally altering the constitutionally entrenched basic law and principles of the EU without utilising the ordinary revision procedure of the Treaties as provided in Article 48 1 to 5 TEU which is part of Irish law b an injunction restraining the Government of Ireland from making provision by legislation or otherwise to give effect to the proposed amendment save by amendment of the Constitution by referendum pursuant to Article 46 of the Constitution 6 ix In a notice of motion returnable on 26th June 2012 the appellant sought an order amending the general endorsement of claim on the plenary summons and the reliefs sought in the statement of claim by the addition of inter alia a claim for a declaration that the Amendment Act of 2012 is unconstitutional 6 x A written summary of the appellant s claim was put before the High Court on 27th June 2012 in which counsel for the appellant outlined the appellant s claims in their final form The learned High Court judge used the written summary as the basis for identifying the elements of the appellant s claim which the High Court had to determine The grounds set out in the written statement on which the appellant challenged the constitutionality of the Amendment Act of 2012 and the validity of Decision 2011 199 EU were summarised as follows a As regards the Amendment Act of 2012 it is unconstitutional in that it purports to transpose into Irish law Decision 2011 199 EU which is unlawful as it is contrary to the terms of the Union Treaties and therefore contrary to the terms of Article 29 4 of the Constitution b In summarising the grounds for his challenge to the constitutionality of the ESM Treaty the appellant asserted his standing to institute the present proceedings to challenge the constitutionality of the approval of Decision 2011 199 EU and to raise questions of Union law in relation to such approval c As regards Decision 2011 199 EU vis à vis Union law and the Constitution i The proposed amendment of Article 136 TFEU ought to have been carried out by means of the ordinary revision procedure The use of the simplified revision procedure constitutes a breach of Article 48 TEU ii It is contrary to the Union Treaties and to the General Principles of Union law in particular the Principle of Legal Certainty which is a constituent element of the Rule of Law upon which the Union is founded pursuant to Article 2 TEU iii Given that it is incompatible with Union law it is also a breach of the Constitution pursuant to Article 29 4 thereof That is a reiteration of what is stated at a above iv It constitutes a proposal to amend the TFEU that is subject to approval by the member states in accordance with their respective constitutional requirements The proposed amendment contained therein prior to its approval falls outside the scope of the Article 29 4 6 immunity provision v Even if it is held to be valid the provisions of the ESM Treaty extend beyond what could properly have been contemplated by the proposed amendment That is more properly is a challenge to the ESM Treaty vi Its incompatibility with the EU Treaties ought to be referred to the Court of Justice of the European Union CJEU pursuant to Article 267 TFEU vii The appellant is entitled to challenge the validity thereof in the context of a preliminary reference procedure under Article 267 TFEU The time limits and standing requirements relating to annulment procedure under Article 263 TFEU do not apply to the Article 267 TFEU procedure The Court is entitled to make a preliminary reference on validity to the CJEU As will appear later this ground is an intended response to procedural issue raised by the defendants European Stability Mechanism Treaty 6 xi On 2nd February 2012 the seventeen member states of the European Union which are euro area member states entered into an intergovernmental agreement the ESM Treaty of which Article 1 1 provides By this Treaty the Contracting Parties establish among themselves an international financial institution to be named the European Stability Mechanism ESM 6 xii After these proceedings commenced a Bill was initiated which was enacted after the High Court hearing concluded but before the High Court judgment was due to be given and is now the European Stability Mechanism Act 2012 referred to as the ESM Act of 2012 Its purpose is set out in the long title as follows A to make permanent provision to provide for matters relating to the participation by the State in the ESM

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  • State or States Ireland would be entering into the relationship of debtor and creditor with such State 165 By virtue of the ESM Treaty Ireland has entered into relations with the States set out in the preamble to participate with them in the European Stability Mechanism and to make payments to that body which agreements are of a binding nature irrevocable and unconditional as the Treaty says Article 8 166 In Crotty Walsh J said speaking of the Single European Act at p 780 of the Report The object of this Treaty so far as Ireland is concerned is to bind this State in its relations with the other Member States of the European Communities Adherence to the Treaty or indeed the Treaty itself is not in any sense an obligation arising from or necessitated by membership of the European Communities 167 It appears to me that that statement can be repeated of the Treaty in question here with the following alterations only The object of this Treaty so far as Ireland is concerned is to bind this State in its relations with some other States and with a new entity created by those States the European Stability Mechanism Adherence to the Treaty or indeed the Treaty itself is not in any sense an obligation arising from or necessitated by membership of the European Communities 168 This was the basis on which the SEA was required to be submitted to referendum 169 I cannot see that these alterations which are all that are necessary to apply the statement of Walsh J to the present Treaty make any difference at all to the vital question of whether ratification of this Treaty requires recourse to the people because it is outside the powers of the Government and the Oireachtas 170 To judge by para 88 of the State defendants written submission they conceive the ratio of Crotty as follows Crotty turns on the transfer of sovereign powers in the field of foreign policy that this Court considered was involved in the EPC Treaty and which the majority of the Court regarded as impermissible It was because such an impermissible transfer was involved since no political co operation was envisaged or then provided for in the European Communities Treaties that the binding commitment to co operate with other contracting parties was involved in the EPC Treaty in respect of the formulation of foreign policy radically altered the then legal landscape as regards the freedom of the State to pursue its own foreign policies as it saw fit from time to time As Henchy J put it a purely national approach to foreign policy which was then the case wa s incompatible with accession to this Treaty 171 I interpret this submission as involving the concession that a purely national approach to foreign policy is what was envisaged by the Constitution But the State defendants clearly regard that as having changed in the interval hence their submissions quoted above about a fundamentally altered legal landscape 172 The landscape is indeed altered but exclusively with regard to the European Union The present Treaty is not a European Union Instrument or something required by membership of the European Union That appears to me to be a simple and dominating aspect of the analysis of the present claim Under the ESM the use of some 11 billion of Irish taxpayers money a sum sufficient to be of macro economic significance will be removed from the power of expenditure of the Irish government and the parliament to which it is accountable Instead that money will irrevocably and unconditionally be given by Ireland to a new financial institution which exists physically outside Ireland and legally and constitutionally outside the Irish constitutional and legal order as well as outside that of the European Union Irish provisions on public monies 173 It appears to me that terms of the European Stability Mechanism Treaty involve Ireland in committing a very large sum of money subscribed by the taxpayers of Ireland to be expended by a body outside the Irish legal order 174 Further it appears to me that the terms of that Treaty are such that those monies are to be expended for a purpose quite different to that of furthering the common good of the people of Ireland 175 I say this for the following reasons For the reasons already set out in this judgment the entire revenues of the Irish State form a single fund Article 11 of the Constitution which is to be expended in the manner provided by Irish law Article 11 also and in the interest of the common good of the people of Ireland Article 6 of the Constitution In particular such funds are to be appropriated for the purposes and in the manner laid down by Irish law Article 11 The most immediately relevant provisions of this law appear to me to be those enshrined in Article 17 of the Constitution and Article 28 4 3 of the Constitution both of which have been cited above The Single Fund referred to in Article 11 is by reason of the Constitution Consequential Provisions Act 1937 s 6 to be known as the Central Fund 176 Section 6 of that Act provides as follows 6 1 The fund mentioned in Article 11 of the Constitution as the one fund to be formed by the revenues of the State shall be called and known as the Central Fund and is in this section and the next following section of this Act referred to for the purpose of distinction as the Central Fund of Ireland 177 That constitution of the Central Fund appears to invoke the jurisdiction of the Comptroller and Auditor General Article 33 1 of the Constitution provides There shall be a Comptroller and Auditor General to control on behalf of the State all disbursements and to audit all accounts of monies administered by or under the authority of the Oireachtas 178 The banking transactions on the Central Fund which were formerly conducted through the Exchequer Account in the Bank of Ireland are now by virtue of s 49 of the Central Bank Act 1971 conducted through the Central Bank This measure provides as follows 49 1 The Exchequer account in the Bank of Ireland shall be transferred to the Bank i e the Central Bank and accordingly references in sections 10 11 13 and 15 of the Exchequer and Audit Departments Act 1866 to the Bank of Ireland shall be construed as references to the Bank 179 Section 2 of the Comptroller and Auditor General Amendment Act 1993 provides as follows Upon receipt of a requisition in that behalf from the Minister the Comptroller and Auditor General shall if he is satisfied as to the correctness thereof grant to the Minister on the account of the Exchequer at the Central Bank or on the growing balance thereof credits a That are to meet disbursements in respect of supply services and do not exceed the amount authorised by the Central Fund Permanent Provisions Act 1965 or as the case may be voted by Dáil Eireann for any supply service for the financial year to which the requisition relates or b i that are to meet disbursements in respect of Central Fund services the making of which is certified by the Minister to fall due during the period of three months commencing with the commencement of the period in respect of which the credits are sought ii That are of the amounts estimated to be required for the purposes specified in subparagraph i and iii That comply in all other respects with the provisions of the enactments relating to them Conclusions 180 It will be remembered that monies paid to the ESM will be used for the purpose of providing support to members of the Euro zone in financial difficulty where such support is indispensable to safeguard the financial stability of the Euro area as a whole and of its Member States Article 3 ESM Treaty 181 It will also be remembered that in relation to a specific decision to provide such support the ESM may take a decision by qualifying majority in the following circumstances an emergency voting procedure shall be used where the Commission and the ECB both conclude that a failure to urgently adopt a decision to grant or implement financial assistance would threaten the economic and financial sustainability of the Euro area Emphasis added Article 4 ESM Treaty 182 It thus appears to me that the Treaty involves a change to the fundamental values and procedures enshrined in the Constitution in that a A significant sum of money subscribed by Irish taxpayers would be given irrevocably and unconditionally to a body which exists outside the Irish and the European legal and constitutional order b That body would be obliged by its constitution to expend these monies or monies raised on the basis of them in the interests of the Euro zone or its Member States as opposed to devoting them as the Irish government would have been obliged to do to the common good of the Irish people 183 As I have already said these interests may of course overlap in any particular case but on the other hand they may not overlap It is impossible looking at these matters before the commencement of the Stability Mechanism to say in advance whether these different interests will always sometimes or never overlap in practice Such an assessment would depend on matters which are simply unknown at the present time and which in any event would fall to be assessed politically For example the question of whether the Fund would be used only to address difficulties which arose after the coming into existence of the Fund or whether on the other hand it might be available to assist in historic or legacy difficulties for example banking difficulties which arose before that date is an issue not now capable of resolution 184 It appears to me therefore that adherence to the ESM Treaty would infringe Ireland s sovereignty and her inalienable right independently to decide her relations with other States in the following ways 185 Firstly as set out above by requiring a substantial sum of Irish public money to be transferred to a new financial institution outside both Irish and European Union control and to be spent by that institution on providing funding to other countries which are experiencing severe financial problems where it is indispensable to safeguard the financial stability of the Euro area as a whole or of its Member States rather than retained in Irish control and employed in the manner specified in the Constitution in furtherance of the common good of the Irish people 186 Secondly by requiring Ireland to submit to decisions as to the expenditure of the fund already mentioned and itself to exercise its relevant powers in particular procedures as Walsh J put it being those laid down by the ESM Treaty 187 This appears to me to be amongst the very things held to be impossible in terms of the Constitution in Crotty Walsh J in a passage already quoted pointed out that the Government s freedom of action in relation to foreign affairs does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures 188 The subject matter of these decisions relates both to the expenditure of Irish public money and to Ireland s relations with the States which would be beneficiaries of this expenditure and thereby engages both the constitutional provisions relating to the expenditure of public monies and those relating to the conduct of the State s external relations The Constitution as adopted in 1937 envisaged what Henchy J called in passages already cited in this judgment a purely national approach two questions of external relations and indeed to public expenditure Subsequent amendments to the Constitution the most general of which is quoted above in its entirety have committed the State in varying degrees to replace a purely national approach with an approach affected by and sometimes dictated by the European Union What is now proposed is outside the scope either of a purely national approach or of a European Union approach It is a tertium quid a new dispensation of an entirely different nature and is not in my view contemplated or mandated by the Constitution Neither is it compatible with its terms for the reasons outlined above 189 Thirdly and quite apart from the foregoing I have considerable doubts as to whether the commitments into which it is now proposed that Ireland should enter are consistent with the constitutional provisions for ensuring the democratic accountability of the government and of Ministers and for ensuring democratic accountability to the Irish people for the appropriation and expenditure of the monies which compose the Central Fund 190 Having regard to the conclusions already expressed above it is unnecessary for the resolution of this case to resolve these issues But I propose now to indicate matters which seem to me to require serious consideration in this regard 191 These concerns relate for instance to the position of the Minister for Finance The Minister is a member of the Government to whom has been allocated the Department of Finance In that capacity he is a member of body which shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the Government Article 28 4 2 and which shall be responsible to Dáil Eireann Article 28 4 1 Furthermore the Minister is constituted by the Ministers and Secretaries Act 1924 as a corporation sole with perpetual succession and having the capacity to sue or be sued 192 The position of the Minister in his capacity as a Governor of the European Stability Mechanism presents some contrast Firstly by Article 5 1 each ESM member shall appoint a governor The governor must be the member of the Government of the member who has responsibility for finance 193 By Article 34 of the Treaty all members or former members of the Board of Governors shall not disclose information that is subject to professional secrecy and are required even after retirement not to disclose information of a kind covered by the obligations of professional secrecy 194 It is not clear to me how this is consistent either with collective responsibility or with accountability to Dáil Eireann Moreover by Article 35 of the Treaty the Governors shall be immune from legal proceedings with respect to acts performed by them in their official capacity and shall enjoy inviolability in respect of their official papers and documents 195 It is not clear to me how this is consistent with the Minister s statutory capacity to sue or be sued 196 The Minister if the Treaty is adhered to by Ireland will be a member of the Board of the Governors of the ESM by virtue of his capacity as Minister for Finance In that capacity he is collectively responsible with his government colleagues and is accountable to Dáil Eireann and is liable to be sued by a citizen who thinks he has cause to do so Is he responsible to the Government or to the Dáil for his actions as a member of the Board of Governors of the ESM Is he liable to be sued in respect of these or not It appears to me that these questions have simply not been addressed 197 Equally the fund out of which the 11 billion which Ireland must pay to the ESM is to be paid is the Central Fund The constitutional and statutory provisions in relation to payments out of that fund have been set out above It is not clear to me that the question whether or not the payments to the ESM are consistent with those provisions has been addressed at all 198 Is the Treaty itself or the 2012 Act intended to be an appropriation for the purposes of Article 11 of the Constitution Are the very substantial disbursements irrevocably and unconditionally promised by the State required to be provided for in the Estimates of Expenditure of the State referred to in Article 17 of the Constitution There does not appear to be in the 2012 Act or elsewhere any provision by specific enactment in each case exempting such payments from the requirement that these Estimates be approved by legislation passed each year contained in Article 17 2 Equally it is not clear whether the requirement that the Comptroller and Auditor General authorise payments out of the Central Fund to the ESM applies or not What would be the position having regard to Article 17 2 of a future Government Taoiseach who did not wish to approve or to recommend an appropriation for payments to the ESM to Dáil Eireann 199 I consider the foregoing to be matters of significance It may be that they have been addressed in each case and that it is considered that no constitutional amendment or legislation is necessary in relation to them On the other hand it may be that those questions have not been addressed at all But my conclusion in this case is based on the more fundamental and clearly established propositions that adherence to the Treaty establishing the European Stability Mechanism is not possible without recourse to the people having regard to the significant changes it introduces both as to the manner in which the sum of 11 billion of Irish tax payers money is to be spent and the purposes for which that expenditure is to take place Proposed Order 200 Accordingly using the language contained in the State s submissions as to the issues that arose in this case I would hold that having regard to the various arguments advanced by the appellant the ESM Treaty involves a transfer of sovereignty to a degree that makes it incompatible with the Constitution when one applies the principles set out by this Court in such that a referendum amending the Constitution is necessary to permit the State to ratify the ESM Treaty on behalf of Ireland 2012 IESC 47 THE SUPREME COURT 339 2012 Denham C J Murray J Hardiman J Fennelly J O Donnell J McKechnie J Clarke J Between THOMAS PRINGLE Plaintiff Appellant and THE GOVERNMENT OF IRELAND IRELAND AND THE ATTORNEY GENERAL Defendants Respondents JUDGMENT of Mr Justice Hardiman delivered the 19th day of October 2012 1 This judgment concerns the compatibility with the Constitution of Ireland of the ratification by the Irish Government of the Treaty establishing the European Stability Mechanism ESM The issue is raised by the plaintiff Deputy Thomas Pringle who is an independent member of Dáil Eireann Deputy Pringle s proceedings also raise other issues to do with the ESM Treaty but these do not arise for immediate determination and some have been the subject of a reference to the Court of Justice The constitutional issue comes before this Court by way of appeal from the judgment and order of the High Court Laffoy J perfected the 18th day of July 2012 Irrelevant factors 2 It will of course be understood that the question before the Court is an entirely legal one The Court is not required to express or to form any view of the merits of the European Stability Mechanism or of its efficacy for the purposes for which it was intended Those are political questions outside the jurisdiction of the Court and firmly in the political domain Similarly during the weeks of reservation of judgment in this case a number of persons expressed in the media the view that the Irish government should be enabled to take steps in a European context without having to submit them to referendum This too is a purely political issue and the Court must proceed on the basis of the Constitution as it now stands and whose relevant provisions are fully discussed below Finally there has been much discussion as to the true scope of the European Stability Mechanism and in particular whether it can be or will in practice be mobilised to provide support to members of the Euro zone whose financial difficulties predate the existence of the European Stability Mechanism itself This question is also a political one and one which it would appear will be decided by entities quite outside the Irish State and its constitutional order Financial dimension of issues 3 Section 3 of the European Stability Mechanism Act 2012 provides as follows 3 There may be paid out of the Central Fund or the growing produce of that Fund sums aggregating to a sum not exceeding 11 145 400 000 to enable the State to make payments in respect of its contribution to the authorised capital stock of the ESM in accordance with the Treaty 4 As will be seen below Ireland will have no veto on the question of whether this entire sum is called upon or not and will bind itself in the Treaty irrevocably and unconditionally to pay this sum if called upon 5 The sum will be payable either at the rates set out in the Treaty quoted below or at an accelerated rate 6 It is manifest that this is a vast sum of money one of macro economic significance I do not intend to repeat this observation each time the sum is mentioned in this judgment For comparative purposes however it may be observed that it is almost four times the 3 billion which is sought to be saved from Ireland s budget in the current year that it dwarfs the 1 6 billion which is Ireland s estimated take from the Common Agricultural Policy that it approaches the total amount of Ireland s health budget and that it would represent the combined current voted expenditure of 1 Department of Education and Skills 8 241 643 000 2 An Garda Síochána 1 424 837 000 3 Department of Agriculture Food and the Marine 1 143 934 000 7 It may be argued that the figure is irrelevant since if it were twice as big or only half as big that would not affect the legal issue of whether the ratification by Ireland of the Treaty is compatible with the Constitution Nevertheless it is salutary to bear in mind the truly enormous scale of the figure at issue in the decision on whether or not to adhere to the Treaty The disposition of a sum of taxpayers money in the order of 11 billion is truly a question of national policy as that phrase is used in Article 6 of the Constitution Some constitutional provisions 8 The plaintiff s case has been expounded with regard to a large number of constitutional provisions which will be mentioned below The fundamentally important provisions for present purposes seem to me to be Articles 1 5 and 6 of the Constitution which provide Article 1 The Irish nation hereby affirms its inalienable indefeasible and sovereign right to choose its own form of government to determine its relations with other nations and to develop its life political economic and cultural in accordance with its own genius and traditions Article 5 Ireland is a sovereign independent democratic State Article 6 1 All powers of government legislative executive and judicial derive under God from the people whose right it is to designate the rulers of the State and in final appeal to decide all questions of national policy according to the requirements of the common good Emphasis supplied 9 The plaintiff also relies on Articles 28 2 which provides that the Executive power of the State shall be exercised by or on the authority of the Government and Article 29 4 which provides that the Executive power of the State in or in connection with its external relations shall in accordance with Article 28 of the Constitution be exercised by or on the authority of the government He asserts as also do the defendants the authority of the case of Crotty v An Taoiseach 1987 IR 713 There the two last mentioned Articles were construed per Walsh J as follows The combined effect of these two constitutional provisions clearly is that the Executive power of the State in connection with its external relations shall be exercised by or on the authority of the government but that in so exercising that power the government is subject to the provisions of the Constitution 10 The same learned judge held that the powers of the government in the international field must be exercised in subordination to the applicable provisions of the Constitution and that therefore It is not within the competence of the government or indeed of the Oireachtas to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered to do so by the Constitution They are both creatures of the Constitution and therefore are not empowered to act free from the restraints of the Constitution To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints Emphasis supplied 11 This then is the jurisdiction which the plaintiff calls on the Court to exercise In a number of cases notably T D v Minister for Education 2001 4 IR 259 and Sinnott v Minister for Education 2001 2 IR 545 this Court has unambiguously asserted the exclusive power of the Legislature and the Executive within their proper sphere and has declined to exercise any sort of general supervisory jurisdiction in those spheres The limits of those spheres and of the powers and prerogatives of the Government and the Oireachtas derive from the Constitution Those powers cannot be trespassed upon by any other entity public private or international equally they cannot be surrendered transferred or given away even by the organs of government in which they are vested That is so because those organs of government are the guardians of these powers not the disposers of them as it was put in Crotty 12 The plaintiff s fundamental claim is that the Government and subsequently the Oireachtas propose to act inconsistently with the Constitution in divesting themselves of power which the Constitution gives to them and conferring that power instead on the European Stability Mechanism an international financial institution created by the Treaty mentioned above which will be based in Luxembourg and which is a permanent institution Basically Mr Pringle charges the Government in ratifying the Treaty establishing the ESM would be acting unlawfully and unconstitutionally in transferring power which is vested in it under the Constitution in the exercise of which it is accountable to Dáil Eireann and ultimately to the people of Ireland to an institution which exists outside the constitutional framework and which is responsible neither to Dáil Eireann nor to the people of Ireland It is equally not responsible to the E U Institutions or the European Parliament 13 There was no issue on the hearing of this appeal and there is therefore no doubt but that Mr Pringle has standing to raise these issues 14 Mr Pringle does not deny that the power in question might lawfully be transferred to the European Stability Mechanism But he says that that cannot be done by the Government or by the Oireachtas alone it requires a decision of the people i e a referendum That is how the people exercise their right to decide in final appeal all questions of national policy a right acknowledged in Article 6 1 of the Constitution Structure of Judgment 15 On the basis of the foregoing summary it appears to me that the Court is required first to consider the nature of the constitutional constraints on the Government in ratifying a treaty such as that in question here secondly to consider the ESM treaty with a view to determining and thirdly whether adherence to it without the authority of the people in a referendum is consistent with the Constitution or not Constitutional constraints 16 On the hearing of this appeal both sides agreed that the nature of constitutional constraints or restraints on the Government in the conduct of its external relations were correctly stated in the majority judgments in Crotty v An Taoiseach 1987 IR 713 from here on Crotty It is therefore inescapable that we must shortly turn to this decision It will be necessary first to see what that case related to 17 Before doing so however it is appropriate by way of general caution to recall the words of Kearns J as he then was in Horgan v An Taoiseach 2003 2 IR 468 when he spoke of the strictly circumspect role which the Courts adopt when called upon to exercise jurisdiction in relation to the Executive s conduct of international relations generally This echoes the words of Barrington J in McGlinchey v Ireland 1988 IR 567 when he said The conduct of the foreign policy of the State is not a matter which easily lends itself to judicial review and if there is any area in which judicial restraint is appropriate that is it Similar principles led the State to refuse relief in Boland v An Taoiseach 1971 IR 388 on the basis that was in issue there was simply a statement of policy which was quite outside the power of the Court to review 18 In Crotty nevertheless the plaintiff challenged the Government s ratification of the Single European Act on the basis that such ratification infringed the provisions of the Constitution He succeeded in this Court in a majority judgment the majority consisting of Walsh Henchy and Hederman JJ Their judgments are pivotal in the present case 19 Henchy J referred to Article 1 of the Constitution where the Irish Nation affirms its inalienable indefeasible and sovereign right to determine its relations with other nations and continued It appears to me that this affirmation means that the State s right to conduct its external relations is part of what is inalienable and indefeasible in what is described in Article 5 as a sovereign independent democratic State It follows in my view that any attempt by the government to make a binding commitment to alienate in whole or in part to other States the conduct of foreign relations would be inconsistent with the government s duty to conduct those relations in accordance with the Constitution Defining some terms 20 The term inalienable a word used several times in the Constitution has a connotation of incapable of being given away transferred or sold The term is also found in Articles 41 and 42 of the Constitution in association with the word imprescriptible which has a connotation close to that of indefeasible and indeed is rendered by the same word in the dominant Irish language version of the Constitution dochloite 21 Defeasible according to the Oxford English Dictionary 1991 means capable of being or liable to be defeated or made void Indefeasible accordingly means not liable to be defeated made void or done away with that cannot be forfeited Ibid 22 The same edition of the Oxford English Dictionary OED defines the term inalienable as follows Not alienable that cannot be alienated or transferred from its present ownership or relation incapable of being alienated or transferred to another by law 23 This meaning seems quite consistent with the ordinary and natural meaning of the additional term used indefeasible In Ryan v Attorney General 1965 IR 294 Kenny J said that inalienable means that which cannot be transferred or given away while imprescriptible means that which cannot be lost by the passage of time or abandoned by non exercise 24 The adjectives inalienable and imprescriptible are used in the Constitution to describe and define the rights referred to in Articles 41 and 42 The latter adjective is not used in Article 1 the near synonym indefeasible being preferred It is of interest to note however that the OED defines impresriptible as follows Not subject to prescription that cannot in any circumstances be taken away or abandoned Emphasis supplied 25 The Dictionary then goes on to give by way of an example of the use of the term a quotation from Tom Paines The Rights of Man as follows The natural and imprescriptible rights of man are liberty property security and resistance of oppression 26 The word sovereign is both a noun and an adjective in the latter use it donotes the qualities associated with the former The principal definition of it by the Oxford English Dictionary is One who has supremacy or rank above or authority over others frequently applied to the Deity in relation to all created things the supreme ruler of a people 27 The term sovereignty which refers to the state of being a sovereign or the defining characteristics of the sovereign it is defined as the same source as referring to The supreme controlling power in communities not under monarchical government Irish language text 28 If one considers the wording of the Constitution in the dominant Irish language text one finds the sense of inalienable in the Irish word doshannta This word like its English equivalent appears in Article 41 1 1 and in Article 42 1 while the word shannadh is used in Articles 10 3 and 10 4 to express the notion of transfer or alienation The word do shannta is composed of the negative prefix do and the participle of shann It is translated as unassignable in Ó Dónaill s Dictionary Sannaim is translated as I assign in Téarmaí Dlí which is a compilation of statutory origin The effect of the prefix do is like that of in in English as in the case of indefeasible discussed above 29 The notion conveyed in English by the phrase indefeasible seems very precisely rendered by the Irish term dochlorite which means invincible or conclusive 30 It may be of significance to note that this very word is also used to express inprescriptible in Articles 41 and 42 and to express in Articles 25 4 and 25 5 the quality conveyed in English by the word conclusive Accordingly these concepts may also be seen as present in the national right referred to in Article 1 It is indelible inalienable indefeasible inprescriptible and conclusive as well as sovereign 31 The notion of sovereignty is conveyed in the Irish text by the word ceannasach which is defined in Ó Dónaill as ruling sovereign and in Dineen as having supreme power 32 I can detect no nuance of conflict or inconsistency in the connotation of the words used in the Irish and in the English texts respectively The English words or at least the first two are unusual and perhaps now old fashioned But they have a long history in a constitutional context for example the American Declaration speaks of unalienable rights Summary on the definition of terms 33 I believe that in the formulation inalienable indefeasible and sovereign and the Irish equivalent of those words the Constitution deploys the very strongest words that are available in either language to indicate the absolute nature of the inherent and unrestricted right of the Irish nation to which they are applied which includes the right to determine its relations with other nations This is surely put beyond doubt by the fact that the word sovereign accordingly to the OED is frequently applied to the Deity in relation to all created things A right so described is not simply one amongst a number of rights it is the origin of other rights and exists at an entirely superior level 34 The words used in the Constitution in each of its languages are apt to connote a right which is permanent incapable of being given away or transferred or

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  • that every national court must in a case within its jurisdiction apply Community law in its entirely and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it whether prior or subsequent to the Community rule Accordingly any provision of a national legal system and any legislative administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law The first question should therefore be answered to the effect that a national court which is called upon within the limits of its jurisdiction to apply provisions of Community law is under a duty to give full effect to those provisions if necessary refusing of its own motion to apply any conflicting provision of national legislation even if adopted subsequently and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means The essence of the Plaintiff s case was that he considered that what he described as respect for the rule of law required that the Court grant an injunction It was said if the plaintiff was correct in his legal argument and that was the assumption upon which the interlocutory injunction application must be approached then ratification of the ESM Treaty would involve the creation of a permanent and irreversible arrangement that was itself a breach of EU law 34 The Plaintiff swore a detailed affidavit in support of his application The thrust of the affidavit was to assert that unless an injunction was granted the State would have entered into an irreversible binding commitment in international law and the court would be deprived of jurisdiction to grant remedies in the event the Plaintiff succeeded Furthermore the State would then be bound permanently to a breach of European law and consequently Irish constitutional law and to financial commitments totalling 11 144 billion with the possibility of subsequent increases The Plaintiff also referred to an unsuccessful challenge in the Estonian courts and a pending challenge in the German Constitutional Court both of which appear to be by reference to provisions of the domestic constitutions He also asserted that there was no particular urgency in ratification because Ireland would be fully funded under the Memorandum of Understanding with the so called Troika until the end of 2013 35 Counsel on behalf of the State for his part stated that he was expressly instructed that it was the unambiguous and unqualified view of the State parties that should the ECJ find that the entry into the Treaty was a breach of European law there would be a remedy at that level indeed such a finding and declaration would be part of such a remedy An affidavit had been sworn by Mr Jim O Brien the second Secretary in the Department of Foreign Affairs asserting that irreparable harm would be caused to the interests of the State and indeed those of the European Union were Ireland not to be in a position to ratify the ESM as soon as possible At paragraph 7 of his affidavit he stated I say and believe that the need for the ESM is urgent and it is the carefully considered view of the Government that it is essential in the national interest that Ireland should ratify the ESM Treaty as soon as possible The Euro area member states and the European Union also have pressing interest in Ireland s ratification of the ESM Treaty at the earliest possible opportunity 36 Counsel on behalf of the State sought to distinguish Crotty in three respects First he said there was not similar urgency involved in the ratification of the SEA and the injunction was only granted for a number of days to permit the Supreme Court hear and determine the appeal in that case Second Crotty concerned an issue solely of Irish constitutional law Third and perhaps most importantly it was asserted and accepted by the Court in that case that there was serious risk of irreversibility If the SEA was ratified the consequence would have been an amendment of the then applicable European Treaties which it was said would put the Treaty beyond constitutional challenge by virtue of the provisions of Article 29 4 3 That he asserted was simply not the case here 37 Notwithstanding the vigour with which the case was made and the skill and learning shown in the written submissions advanced I have come to the conclusion that the application for an interlocutory injunction in this Court is profoundly misconceived On every single consideration I am satisfied that the balance is decisively against the grant of such an order 38 First I am satisfied that the analogy with Crotty is misplaced Crotty was a truly exceptional case involving an issue of Irish constitutional law and a view which appears to have been accepted at least for the purpose of the application by the Court that the decision to ratify the SEA would put it beyond any subsequent challenge The question of the irreversibility of the measure was therefore central to the decision to grant the injunction in Crotty Furthermore the period of time involved was very limited and a matter within the Court s own control Here by contrast the issue is one of European rather than Irish law and at its core is the capacity of members of the Euro area to enter into a separate ESM Treaty In my view it is clear therefore that ratification pending the conclusion of the case would not put the ESM treaty beyond effective challenge at the level of EU law 39 Second it follows from the foregoing that no irreparable harm would be caused still less any irreparable harm to the plaintiff in these proceedings if the injunction is not granted If for example the ECJ considered that the ESM Treaty contravened the Treaties in some respect then given the fact that every participant of a treaty in the ESM Treaty is a member of the EU and is bound by the decisions of the ECJ it would clearly be within the power of the EU whether alone or in conjunction with the national courts to secure compliance with what it had determined to be the true interpretation of the Treaties and the obligations of the relevant member states Indeed it would be the duty of the participant countries to conform to the law as so declared That would be the application of the principle in Simmenthal rather than a breach of it 40 Third on the assumption that an effective declaration of invalidity might indeed be made even after ratification the Plaintiff nevertheless argued that steps could be taken quite quickly on foot of ratification such as calls for capital borrowing on foot of that and even advancement of loans which might be difficult to reverse It was emphasised that the sums involved were enormous Even allowing this I do not consider that this compels the grant of an injunction First it is not beyond the power of courts whether at national or EU level to require steps taken to be reversed if it is considered necessary to bring parties in to conformity with the requirements of the law Furthermore the Plaintiff has never expressed himself to be opposed to the advancement of particular monies to particular countries His objection repeatedly stated during this case lay at the level of principle and was to a permanent mechanism with the possibility of a requirement for further funding from this country Notably he has not challenged and apparently has not raised any complaint about the EFSF mechanism which has been in place since May 2010 and made considerable disbursements thereafter and which the ESM is intended to replace It follows that in the event that the plaintiff should succeed in these proceedings pursuant to the reference to the ECJ then the ESM in its current form would be brought to an end and would have had a lifetime much shorter than that of the EFSF Accordingly in such an event neither Mr Pringle nor the interests he asserts would have suffered any irreparable harm or indeed any harm at all 41 Fourth it must be recalled that the point which now remains in this case is an issue of pure European law equally applicable in theory in every country throughout the European Union However if the Plaintiff were to succeed and if an injunction were to be granted the effect would only be that Ireland would not ratify the Treaty Such an injunction would not restrain approval by other Member States or indeed the coming in to force of the ESM which is the object Mr Pringle seeks to achieve The remedy of an injunction would therefore produce the worst of all outcomes even if temporary it would run the risk of causing the harm to the defendant s interests which they apprehend without benefiting the plaintiff s interest in any material way If the plaintiff were ultimately to succeed that would have the same impact across the Eurozone Pending such a decision there is no compelling reason why Ireland should not be in the same position as its European partners 42 A fifth consideration is that as set out in Zuckerfabrik which requires that the interests of what was then the Community and now the Union should be taken into account The domestic concept of the balance of convenience is I think sufficiently flexible to take such a consideration into account It seems apparent that the interests of the Union weigh heavily against the grant of an injunction at this stage since the only certain consequence of such an order is further uncertainty in an already volatile financial world Furthermore it does not appear that any other citizen of the EU has commenced a challenge to the ESM on grounds of European law The citizenry of the Union have interests and rights which would be affected perhaps severely by the grant of an injunction In circumstances where the Plaintiff s case is not compelling and where the outcome of any order is unpredictable I consider that the interests of the Union lie against any temporary order under which the interests of the wider citizenry of the Union and the Eurozone in particular might be affected without the possibility of representation in the proceedings or remedy should the proceedings ultimately fail 43 Finally there is in my view a real risk of irreparable harm to the defendants if an injunction is granted It cannot be ignored that an affidavit has been sworn by a high official in that Department of Government which exercises the Executive function in the conduct of foreign affairs That duty is consigned solely to the Government pursuant to Article 29 4 of the Constitution subject only to the Government s accountability to the Dáil of which it might be observed the Plaintiff is a member pursuant to Article 28 4 1 Mr O Brien has sworn that it is the considered view of the Government that it is essential in the national interest not just that Ireland ratify the Treaty but that it do so as soon as possible If ratification is prohibited by order of this Court then it follows that the national interest at least in the view of the organ entrusted with the sole power to conduct international relations and which for good measure manages the State s economic affairs is necessarily damaged Furthermore that particular damage is irreparable If the injunction sought is granted then the one thing that cannot be done and can never be done whatever the subsequent outcome of this case is that Ireland should proceed to ratify the Treaty at that time which the body entrusted with that decision had decided it was in Ireland s national interests to do so It is manifest that there is nothing that the plaintiff or indeed this Court could do to remedy that damage It is also truly remarkable that on this application the courts should be invited simply to disregard that stark statement and to accept instead the assertion of the plaintiff who lacks both the constitutional function and it appears any professional expertise to make such a judgment that Ireland is fully funded until 2013 and that therefore no damage will be done to Ireland s national interest by a delayed ratification even if it should later transpire that such ratification would have been perfectly lawful 44 This leads me to a consideration which appears to have been largely overlooked in the plaintiff s analysis but which in my view is also decisive In Crotty in the course of a short judgment granting the injunction Finlay C J with whom all other members of the court agreed recognised that in the constitutional context the balance of convenience was exceptional and considerations different to those of the ordinary injunction applied The very fact that the plaintiff does not even address the question of an undertaking as to damages normally a sine qua non of the grant of an injunction in private law is perhaps an acknowledgement albeit tacit of the accuracy of this observation In the plaintiff s determination to challenge the wisdom and legality of the Government s decision he appears to give no weight to the fact that it is a decision made by the Government That is the body to which the Constitution has allocated the task of making such decisions whether trivial important wise or profoundly misguided Here the Court is invited to restrain the exercise of constitutional function by a body authorised to carry out that function and in respect of which function the Constitution imposes little in the way of express limitation and contemplates direct accountability to the Dáil and indirectly the People rather than to the courts Indeed in one sense this case goes further It has been asserted in my view plausibly that it is in the national interest for Ireland not only to ratify the ESM Treaty but to do so as soon possible No one can be unaware of the importance of speed and the unpredictable consequences of delay in such matters Time therefore is more critical in the context of this application than even in Crotty where it might be said that Ireland s national interest would be protected by ratification within a reasonable time A court requested to grant an injunction in circumstances such as this is faced with a form of zero sum calculation It is not possible to freeze the time for making this decision Events both in Ireland and elsewhere will move on Accordingly if the decision cannot be made to ratify the Treaty immediately then that is in effect a decision not to ratify the Treaty immediately The question then becomes not just what decision should be made but who should make it even temporarily That is a question on which the Constitution gives clear guidance The Constitution makes that decision one for the Executive branch and does not confer that function upon either this Court or any individual plaintiff The fact that the decision may be momentous does not alter the constitutional allocation Governments are elected to make decisions whether trivial or momentous successful or catastrophic and for those decisions they are answerable to the Dáil and through it to the People 45 Accordingly this case presents in a particularly acute way an invitation to the Court which is itself obliged to ensure that the functions of the other constitutional bodies are exercised within their proper sphere not just to prevent what is on its face a performance of constitutional function by the body to which the Constitution has allocated that function but also to become however temporarily a participant in the exercise of the function This is something which in the general sphere a court is correctly reluctant to do For example a court simply will not interfere with the legislative process prior to the enactment of legislation no matter how plain the alleged defect is Wireless Dealers Association v Fair Trade Commission Unreported Supreme Court 14 March 1956 Once enacted and the Legislature has performed its function the legislation may be challenged The exercise of the State s exercise in foreign affairs may be somewhat different because it can occasionally carry with it the prospect of a decision being implemented and immunised and effectively put beyond contest review or remedy But that should not obscure the fact that fundamentally a court should be very slow to take a step which may involve effectively substituting its decision even if only temporary and suspensive for that of the Government in matters of foreign affairs Accordingly in my view the proper functioning of the constitutional balance requires that considerable weight indeed should be accorded to the constitutional interest in ensuring that the Government performs the executive functions assigned to it in the way it considers appropriate and for which it is accountable in the first place to the Dáil and through it to the People The constitutionality of the measure can still be challenged after it has come into effect There may be cases which are particularly clear and strong and which are attended by considerations such as unreviewability immunity and urgency It is not necessary or indeed wise to anticipate such eventualities It is enough to say that this case is decidedly not one such Here the balance of convenience on any view weighs heavily against the grant of an injunction The Plaintiff s claim has been addressed with considerable expedition in the High Court this Court and the ECJ That process will provide a very speedy resolution of the issues raised by the plaintiff Pending the final outcome of those proceedings the challenged measures both at domestic and EU level remain in place In my view that is the appropriate and certainly preferable way to the address the Plaintiff s concerns THE SUPREME COURT Appeal No 339 2012 Denham C J Murray J Hardiman J Fennelly J O Donnell J McKechnie J Clarke J Between Thomas Pringle Plaintiff Appellant and The Government of Ireland Ireland and the Attorney General Defendants Respondents Judgment delivered the 19th day of October 2012 by O Donnell J 1 I gratefully adopt the account of both the procedural history of this case and the nature and effect of the European Stability Mechanism Treaty the ESM Treaty contained in the judgments of Denham C J and Clarke J with which judgments I am in full agreement 2 The central issue in this case is whether or not entry into an international treaty containing provisions such as those contained in the ESM Treaty could contravene the constitutional limitations on the exercise of Executive power in the field of foreign affairs identified in Crotty v An Taoiseach 1987 I R 713 The plaintiff s case in this regard was that the ratification of the ESM Treaty was a momentous decision on the part of the Irish Government involving a potential liability of up to 11 1454 billion by way of contribution to a fund totalling some 700 billion for the express purpose of securing the stability of the Eurozone or any member thereof in circumstances where the allocations from the fund could at least in certain circumstances be made by a qualified majority of the contracting states which might not include Ireland either because Ireland disagreed with the allocation or was excluded from voting 3 It was argued that the essence of the decision in Crotty was to be found in a passage of the judgment of Walsh J at p 781 in which he said As was pointed out in the decision of this Court in the first part of this case the essential nature of sovereignty is the right to say yes or to say no In the present Treaty provisions that right is to be materially qualified The reference to the first part of the case was to the single judgment of the Court delivered by Finlay C J upholding the constitutionality of the European Communities Amendment Act 1986 which had brought into force those elements of the Single European Act the SEA which did not involve foreign affairs It was argued therefore that the ESM Treaty was an unconstitutional fettering of Irish sovereignty because to put it at its simplest the ESM including Ireland s contribution could be applied in circumstances in which Ireland might not agree It was argued that this could not be permitted other than by a decision of the People in a referendum akin to the provisions of the third amendment inserting Article 29 4 3 which permitted the State to become a member of the European Communities 4 There can be little doubt that if the essence of sovereignty at least as contemplated by the Irish Constitution is to be understood as meaning that Ireland fetters its sovereign right to decide by joining any organisation which acts collectively or at least one in which Ireland does not retain a veto and therefore the right to say no then the ESM Treaty would be of dubious constitutional validity along with it must be said many other important international agreements However judgments are not to be read in the same way as statutes A single sentence in a judgment rarely encapsulates the essence of a lengthy judgment and a judgment of one judge even one as eminent and influential as Walsh J is not to be taken in isolation as stating the ratio decidendi of a case There is always a danger of substituting the invocation of a vivid and memorable phrase for the analysis of the substance of a judgment Like Denham C J and Clarke J and those of my colleagues concurring with those judgments I am quite satisfied that the plaintiff s arguments here involve a clear misunderstanding and misinterpretation of Crotty but perhaps more importantly of the Constitution 5 The provisions of the Constitution dealing with the exercise of Executive power in the field of foreign affairs were closely analysed in the judgments in Crotty and particularly in those of Barrington J in the High Court and Finlay C J and Walsh and Henchy JJ in the Supreme Court It is indeed a distinctive feature of the Constitution adopted in 1937 that it deals with external relations at all The historical background is usefully discussed in a Thomas Davis lecture delivered by Mr Justice Barrington in 1988 entitled The North and the Constitution published in Farrell ed De Valera s Constitution and Ours Dublin Gill Macmillan 1988 which pointed out that in 1936 when the Constitution was being drafted Mr de Valera was President of the League of Nations and that some of the values of the Covenant of the League of Nations were clearly reflected in the Constitution itself and in particular in Article 29 It is also noteworthy that the provisions dealing with the conduct of foreign affairs and particularly the extent to which there was to be review of the Executive s conduct in such matters and the identification of the body exercising such power of review were the subject of very carefully drafted nuanced provisions clearly influenced by and consistent with other aspects of the architecture of the Constitution Thus it is noteworthy that the Constitution contemplates that the Government may enter into international agreements and then divide those agreements into a number of types with different constitutional consequences All international agreements must be laid before the Dáil under Article 29 5 and it is to be noted only the Dáil and not the Oireachtas generally consistent with the Government s answerability to that house under Article 28 4 1 Any agreement which goes further and involves a charge on public funds other than an agreement of a technical or administrative character must be approved by the Dáil again consistent with that body s distinct role in financial matters reflected in Articles 17 20 21 22 and 28 7 Finally in this regard no international agreement may become part of the law of the State save as may be determined by the Oireachtas as a whole pursuant to Article 29 6 a provision which is once again consistent with the vesting in the Oireachtas of the sole and exclusive power of making laws for the State under Article 15 2 1 From these provisions may be drawn the unremarkable conclusion that the Constitution contemplates that the conduct of the State s foreign relations will necessarily involve the making of binding agreements with other states which agreements could have financial consequences for the State and on occasions require an alteration of its domestic law 6 Among the other relevant provisions of the Constitution dealing with foreign affairs is the specific requirement that war may not be declared save with the assent of Dáil Éireann Article 28 3 This is striking because it appears to be the single incidence in which the Executive power in the field of foreign affairs is restricted by a requirement to obtain the prior agreement or concurrence of any other body but equally significant for present purposes in that the assent of the Dáil alone is required Not only is there not a requirement of approval by the Oireachtas generally but there is clearly no requirement for direct approval by the People The more general and rarely litigated provisions of Article 29 are also instructive in this regard Ireland s affirmation of its devotion to the ideal of peace and friendly cooperation and adherence to the principle of pacific settlements of international disputes by international arbitration and judicial determination together with its acceptance of the generally recognised principles of international law may all appear unremarkable today but were significant and far sighted provisions in 1937 It can be deduced from these constitutional provisions at a minimum that the Constitution clearly anticipated the Executive power could and would involve the making of binding agreements with other nations and that Ireland might become involved in disputes which themselves might be resolved by a process involving a binding determination by which Ireland would be obliged to abide Article 29 4 2 is a little discussed provision nowadays being seen as of largely historically interest However it again clearly envisages that in its conduct of foreign affairs Ireland could adopt mechanisms utilised by members of any group or league of nations with which the State could become associated for the purposes of international cooperation This again contemplates that the business of the conduct of foreign affairs might necessarily involve the making of agreements with foreign States cooperation with and membership of international bodies and occasionally and regrettably the possible occurrence of disputes including the commitment of the State to a war 7 While these explicit provisions are instructive they very deliberately impose little by way of judicially enforceable restriction on the substantive exercise by the Executive of its conduct of foreign relations Article 29 4 makes it clear that it is the Government which shall conduct external relations and by its reference to Article 28 emphasises that in that respect the Government is responsible to the Dáil That is the method the Constitution envisages for review and control of the exercise of the Executive power in the conduct of foreign relations The courts have repeatedly affirmed their limited role in the review of Governmental activity in the field of foreign affairs In Crotty at p 774 Finlay C J said that There is nothing in the provisions of Articles 28 and 29 of the Constitution in my opinion from which it would be possible to imply any right in the Courts in general to interfere in the field or area of external relations with the exercise of an executive power At p 777 Walsh J said to similar effect It is the Government alone which negotiates and makes treaties and it is the sole organ of the State in the field of international affairs Emphasis added The courts function in this regard is to enforce those boundaries of and limitations to the exercise of the Executive power in foreign relations which are either express in or to be implied from the constitutional text and at the same time to reject any attempt to impose limitations on Governmental conduct of foreign relations not justified by the Constitution The State Gilliland v The Governor of Mountjoy Prison 1987 I R 201 is a rare example of the enforcement of an express limitation in the Constitution where a treaty was found to involve a charge on public funds which had not been approved by the Dáil Crotty is an example of a limitation derived from the structure of the Constitution itself Since it is to the Government alone that the conduct of foreign affairs is consigned by the Constitution it follows that such international relations must be conducted by the Government which cannot abdicate alienate transfer or subordinate its functions to any other State or body 8 Returning then to the present case it is clear that the plaintiff s argument places considerable reliance on the single sentence from the judgment of Walsh J referring to the right to say yes or no in order to contend that an agreement such as this which creates at least the possibility of decisions being made on the allocation of ESM funds without Ireland s agreement is unconstitutional In my view that contention is profoundly misconceived on a number of levels 9 It seems clear to me that even in the very specific context in which the words are used they should not be understood in the manner contended for As already observed Walsh J referred back to the single judgment of the Court on the European Communities Amendment Act 1986 when he repeated the phrase that the essence of sovereignty was the right to say yes or no The source of that observation was a portion of the judgment of Finlay C J at p 769 That judgment however upheld the 1986 Act which implemented the provisions of the SEA which took effect in domestic law on the grounds that the original licence granted by the People to join the European Communities was a licence to join a dynamic and developing entity Therefore incremental changes in European institutions within the scope of the existing licence did not require further express approval by the People But one of the most significant changes challenged was the adoption by the Community of qualified majority voting rather than unanimity in certain cases In each such case the consequence of the change was that Ireland and necessarily every other member state lost its veto in specific terms Ireland lost the right in those circumstances to say no Yet that change was not incompatible with the Constitution That in itself is a powerful indicator that the single phrase vivid though it may be cannot be read in the simplistic way put forward by the plaintiff in this case 10 That conclusion becomes even clearer when the judgment of Walsh J is looked at as a whole in the context of the case As Clarke J points out in his judgment the essence of the decision of the majority is to be found in a series of passages in the majority judgments For example and perhaps most clearly in the judgment of Henchy J it is stated thus at p 787 It follows in my view that any attempt by the Government to make a binding commitment to alienate in whole or in part to other states the conduct of foreign relations would be inconsistent with the Government s duty to conduct those relations in accordance with the Constitution Hederman J at p 794 considered that the essential point was that the State could not enter into binding agreements with other states or groups of states to subordinate or to submit the exercise of the powers bestowed by the Constitution to the advice or interests of other states These statements are clearly consistent with the judgment of Walsh J at p 778 where he said It is not within the competence of the Government or indeed of the Oireachtas to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered to do so by the Constitution Similarly at p 783 he said In enacting the Constitution the people conferred full freedom of action upon the Government to decide matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as in the opinion of the Government the occasion requires In my view this freedom does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures and so to bind the State in its freedom of action in its foreign policy In my view the words abdicate alienate subordinate and indeed also transfer contain the essence of what was considered impermissible in Crotty 11 This conclusion is I think consistent with a fair reading of the case as a whole and in particular when considered in the light of what was in issue between the parties In the Supreme Court the State parties had taken up an absolute position that the Government s exercise of the Executive function of making treaties could never be the subject of judicial scrutiny which was rejected by the entirety of the court What divided the court itself was a narrower issue and essentially one of timing There was little disagreement on the fundamental legal principle The minority comprised of Finlay C J and Griffin J accepted that if the SEA created a form of political union then there could be no doubt that in the words of Finlay C J at p 771 it would constitute an alteration in the essential scope of and objectives of the Communities to which Ireland could not agree without an amendment to the Constitution However the minority considered that this point had not yet been reached The majority for its part in the words of Henchy J considered that the SEA was a significant and decisive step along a path of gradualism towards that objective There was no dispute therefore that to agree to adopt a single European foreign policy would be inconsistent with the Irish Constitution since the Irish Government would no longer be exercising that power alone The question which did divide the Court was whether that point had been reached 12 I accept of course that there are elements of the judgment of Walsh J which if taken out of both their specific and general context might suggest that it is not possible for the Government to enter into any international agreement which precludes it from saying no at some future stage and that such freedom of action is of the essence of sovereignty For a number of reasons I do not consider that the judgment should be so understood and still less that such a test can be asserted to be part of the ratio decidendi of the case as a whole or indeed could provide any workable test that is consistent with history common sense or the structure of the Constitution 13 First for reasons already identified the issue in Crotty was not the question now raised as to whether the essence of sovereignty is to be found in an obligation

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  • not permitted Finally in this regard Hederman J was of the view that the Government could not submit or subordinate the exercise of its constitutional powers in this field to the advice or interests of other states as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies p 794 of the report All of the judicial observations made in Crotty must obviously be viewed against the Treaty provisions which the Court was called upon to examine such provisions committing the State and all future Governments to do the following 1 To endeavour to formulate and to implement a European foreign policy 2 To undertake to inform or consult the other Member States on any foreign policy matters of general interest not just of common interest so as to ensure that the combined influence of the States is exercised as effectively as possible through co ordination the convergence of their positions and the implementation of joint action 3 In adopting its position and in its national measures the State shall take full account of the position of the other Member States and shall give due consideration to the desirability of adopting and implementing common European positions 4 The State will ensure that with its fellow Member States common principles and objectives are gradually developed and defined 5 The State shall endeavour to avoid any action or position which impairs the effectiveness of the Community States as a cohesive force in international relations or within international organisations 6 The State shall so far as possible refrain from impeding the formation of a consensus and the joint action which this could produce 7 The State shall be ready to co ordinate its position with the position of the other Member States more closely on the political and economic aspects of security 8 The State shall maintain the technological and industrial conditions necessary for security of the Member States and it shall work to that end at national level and where appropriate within the framework of the competent institutions and bodies 9 In international institutions and at international conferences which the State attends it shall endeavour to adopt a common position with the other Member States on subjects covered by Title III 10 In international institutions and at international conferences in which not all of the Member States participate the State if it is one of those participating shall take full account of the positions agreed in European Political Cooperation One other matter expressed in somewhat ambiguous terms at Article 6 c in Title II is as follows Nothing in this Title shall impede closer cooperation in the field of security between certain of the High Contracting Parties within the framework of the Western European Union or the Atlantic Alliance Littered within the above obligations are requirements not only to consult with and inform other states but also by endeavour to ensure that common principles and objectives are generally developed and defined to take account of their position in adopting a national perspective to adjust such perspective to accommodate the common good of other states and to converge its interests so that the objective of reaching a common European policy could be furthered In addition the State was required to step down its own position if otherwise that would impede reaching a consensus or prevent joint action and much more At a general level Title III of the SEA constituted an abstract framework in many fundamental respects It lacked specificity and failed to set out or provide parameters either by reference to the formulation or implementation of policy It set broad and distant targets which if achieved would bring about significant changes in constitutional structure The method of progress in this regard was largely unspecified save to note the significance of the power vested in organs or bodies external to the State the outside boundaries were ill defined as was the timescale and structures envisaged It involved the State being made subservient to the interests of other member states and would have brought about a fundamental transformation of Ireland s relations with such states It would have increased the essential scope and objectives of the Community In all it was very much a journey into the unknown When one contrasts the above position with that prevailing under the ESM Treaty it becomes immediately clear that what is established by the latter is an international financial institution financed by contributions from contracting states as well as having an ability of itself to raise funds on the market Its operational remit is to provide assistance to contracting states who cannot obtain finance on the market at reasonable and sustainable rates Such assistance is subject to strict conditionality At the point of principle what is strikingly different between the provisions of the ESM Treaty and Title III of SEA is the level of detail underpinning the former and the absence of such detail regarding the latter The entire substance of the ESM Treaty structure is set out commencing with the purpose of its establishment its memberships its governance which includes voting rights of contracting states how decisions are made specifying those which require mutual agreement and those which can be recorded by qualified or simple majority and making specific provision for true emergency situations and its initial capital which is maximised at a certain level with each contracting state s contribution being calculated or capable of ready calculation It goes on to detail how such can be reviewed in accordance with Article 10 1 and Article 5 6 b thereof how stability support can be provided to a contracting party with the use of a financial instrument most appropriate to its financial management and it also deals with the establishment of reserve and other funds coverage of losses etc This brief survey of its provisions do not do immediate justice to a comparative analysis with Crotty If time and space permitted the laying out of its terms in full would immediately convey the disparity between it and Title III SEA In effect the fundamental difference between both is the fact that the ESM Treaty is essentially policy implementing and not policy making Therefore it cannot be said that there is any fundamental transfer of sovereign power to the institution or to the other subscribing states Whilst I acknowledge that there are certain provisions heavily relied upon by the plaintiff which might suggest the contrary in reality and as a matter of practice none of these involve an open ended commitment by the State In addition the State has a voice on such matters It is true that if the State defaults in making its contribution to the authorised capital stock or in honouring its obligations to reimburse any financial assistance obtained from the institution then and for so long as such default continues it shall be unable to exercise its voting rights by virtue of Article 5 8 of the Treaty However even in such a situation it seems most unlikely that there could be any increase in authorised capital stock as any such decision could only enter into force after the members had complied with their applicable national procedures Article 10 I rest this view not on any definitive interpretation of the Treaty s provisions that ultimately being a matter for the General Court but rather on the undeniable fact that as part of domestic law the Dáil s approval would be required for any such increase In this context it should be noted that subject to the possible review last mentioned Ireland s maximum contribution has been capped and in fact the Minister for Finance has been authorised by virtue of Section 2 of the European Stability Mechanism Act 2012 to make such payments as required In addition whilst the institution may provide financial support for a member state during the currency of any default period which of necessity would mean that the State could not influence the terms of any such assistance nonetheless that consequence could not be classified as decisive or determinative in this area In any event it is a consequence which is within the State s power to avoid Equally so when one considers the actual terms of the Treaty and the relevant provisions of Articles 28 and 29 of the Constitution I do not believe that the absence of a specific provision for withdrawal has any negative effect or consequence for sovereignty Consequently in my view I cannot agree that the State by entering into this Treaty has acted impermissibly in the manner identified by the majority in Crotty Rather when the benefits of the Treaty are also accounted for it can be said that its ratification in the full knowledge of the commitments undertaken is in itself an act of sovereign power and not a subjection of it Furthermore it can rightly be seen as a step in furtherance of the common good of the Nation even if in this regard the common good of other member states is also satisfied Finally I agree with the judgment of the Chief Justice on the injunction issue For the above reasons I would dismiss this aspect of Mr Pringle s claim THE SUPREME COURT Appeal No 339 2012 Denham C J Murray J Hardiman J Fennelly J O Donnell J McKechnie J Clarke J Between Thomas Pringle Plaintiff Appellant and The Government of Ireland Ireland and the Attorney General Defendants Respondents Judgment delivered on the 19th day of October 2012 by Mr Justice William M McKechnie In view of the other judgments of the Court dismissing this application a conclusion with which I entirely agree I propose to add a few brief observations only to put in context my agreement with such decision The key issue on this part of the constitutional challenge is the application of Crotty v An Taoiseach and Others 1987 IR 713 Crotty no one has suggested that Crotty was wrongly decided The defendants expressly acknowledge the correctness of the decision and say that whilst it may have been controversial at the time that certainly is no longer the case The plaintiff relies upon it as the fundamental pillar or cornerstone in the challenge undertaken by him Therefore how Crotty was decided is not the point although I should say that in my view the decision was correct Rather it is whether by reference to the principles properly deducible from the majority decision the State by becoming a contracting party to the European Stability Mechanism Treaty done at Brussels on the 2 nd February 2012 ESM Treaty can be said to have alienated abdicated surrendered or transferred the powers bestowed upon it by the Constitution in a manner not so permitted by it This aspect of the case is in effect a single precedent one is the State s ratification of the ESM Treaty prohibited by Crotty In other words has the Government in the exercise of its executive authority in the field of foreign affairs infringed the limitations imposed on that power when referenced to Crotty Before looking at Crotty however it is important to note that the suggested action of the Government is not challenged by virtue of any express constitutional provision The absence of such challenge is entirely understandable because at the level of principle it is uncontroverted that the executive power of the State generally and in particular with reference to foreign affairs external relations is the phrase used in Article 29 4 of the Constitution is exercised solely by or on the authority of the Government subject to informing Dáil Éireann and where a charge on public funds is involved getting its approval the State may enter into international agreements and where any such agreement is intended to be part of domestic law the approval of the Houses of the Oireachtas is required these provisions do not apply to agreements of a technical and administrative character There is nothing surprising in any of these provisions the Dáil requirement reflects domestic accountability at political level and the legislative requirement reflects the institutional structure of the Constitution There is thus no dispute about these general principles or the fact that the exercise of this power by the executive branch of Government in the field of foreign affairs and indeed otherwise can be subject to judicial scrutiny and therefore to judicial analysis Walsh J and Henchy J at pp 778 and 786 respectively of Crotty and McCarthy J at 541 of Ellis v O Dea 1989 I R 530 Equally so any act done in this area such as for example entering into an international agreement or treaty whether by virtue of entry alone or by reason of the commitments and obligations thereby undertaken must be compatible with the Constitution Article 29 4 1 in conjunction with Article 28 2 expressly states that such power is subject to the provisions of the Constitution In such circumstances Walsh J must surely have been correct when he said that the Government or for that matter the Houses of the Oireachtas cannot operate free from the constraints of the Constitution p 778 of Crotty Subject to this limitation which is imposed at the highest level of our legal order it has also been readily acknowledged that the Government alone is the actor in this field and that it enjoys extensive autonomy in that regard The source of this competence is not statute dependent but rather stems from the Constitution itself see not only Article 29 but also the provisions of Articles 1 5 and 6 In considering the complaint and allegation of unconstitutionality in this case the evaluation test or criteria to be applied is to be found in Crotty and at a most general level can be described by stating that the relevant powers of Government cannot be abdicated alienated transferred or subordinated to other states or bodies These words are rooted squarely on the sovereignty of the State and on the Nation s affirmation of its inalienable and indefeasible right inter alia to determine its relation with other nations Article 1 and on the right of the people in the final appeal to decide all questions of national policy having regard to the requirements of the common good Article 6 As can be imagined much learned debate on both the judicial and academic side has followed Crotty with a view to ascertaining the true meaning of these words Of necessity and largely by reason of the paucity of cases where the issue arises much of the discussion has been abstract lead Notwithstanding the unquestioned value of such contributions nonetheless I believe that the real and essential import of such words are more likely to emerge from an examination of their practical effect on a set of concrete circumstances such as those presenting in the instant case Such an examination at a general level is briefly conducted at paras 13 and 14 infra Whilst correctly there has been much concentration on these phrases nevertheless reference must of course also be made to the detail of Crotty without which a full understanding of the decision would obviously be lacking Despite the fact as indicated that the parameters of the decision still give rise to much debate and differing views I do not believe that for the purposes of this case Crotty must necessarily be microscopically examined in such a way that a conclusion supporting refining or dissenting from each and every aspect of the decision must be reached I do not find such an exercise vital at least at this stage for the very fundamental reason that at a comparative level the subject of the investigation in that case namely Title III of the Single European Act SEA is wholly distinguishable from the provisions of the ESM Treaty the subject of the instant case The views of the majority in Crotty which underpin the Court s conclusion were described in varying and differing ways these have been fully set out in the judgments of the other members of this Court and I gratefully adopt what they say I wish to add only a few comments Walsh J in a passage referred to at p 781 of the report states that the essential nature of sovereignty is the right to say yes or no Sovereignty in this context can only mean that as provided for and as intended by the Constitution It is said by the plaintiff that this right encapsulates the very heart not only of the majority decision but of sovereignty itself Without qualification or context I cannot agree with this proposition either at a particular or general level Given the extensive observations of the learned judge on this issue to take such a phrase and to treat it in isolation as founding the essence of his decision is in my view to misread his judgment To suggest that the criteria for determining the instant challenge to the exercise by the Executive of its power to ratify the ESM Treaty can be determined on such a basis is simply not sustainable In fairness I should immediately say lest I appear to do an injustice to the plaintiff that his reference to and reliance upon this phrase may have been intended as a shorthand expression of his more general argument under this heading Therefore whilst the point has to be addressed the overall case has to be determined on the entirety of what the majority said and not simply on this passage Reverting to the particular argument for a moment the reason why I reject the suggested significance of the expression is that in the first place the judge himself expressly acknowledged that Finlay C J was the source of such phrase when giving the Court s judgment on the challenge to the SEA save for Title III thereof That remark as originally made was

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  • only decisions which will be binding in any sense on Ireland are decisions made by the ESM Board of Governors to provide financial assistance to other members of the ESM where such assistance is considered indispensable to safeguard the financial stability of the euro area as a whole and of its Member States That financial assistance must come from funds already committed by Ireland with the approval of the Dáil or from funds borrowed by the ESM in circumstances where there will be no recourse to Ireland The ESM Treaty has a narrow if important policy objective to which an immediate commitment of substantial funds is made with the attainment of the specified objectives being left to a Board of Governors on which Ireland will have a representative That Board of Governors will not make policy but rather will implement it 8 15 In passing I should note that in my view there may be circumstances in which a permanent and irreversible commitment to a very wide ranging set of policies in an important field such that the Government lost the ability to ever change those policies in the future might even though the policies were specifically identified cross the boundary of involving an impermissible ceding or pooling of the type of sovereignty found in the Irish constitutional model However it seems to me that the commitments which Ireland would make by ratifying the ESM Treaty fall a long way short of breaching any such boundary I would leave to another case the question of determining with precision where any such boundaries might lie For the purposes of this case it seems to me that the ESM Treaty can be distinguished from the aspects of the SEA which were under consideration in Crotty in the manner which I have already identified The ESM Treaty does not involve a transference of the power to make policy into the future in any material way to other countries or institutions In addition the ESM Treaty does not involve a permanent commitment to a set of policies which is so far reaching as to amount to an effective transference of sovereignty 8 16 In all those circumstances it did not seem to me that there was any basis for the suggestion that participation by Ireland in the ESM Treaty amounted to an abdication or diminution in sovereignty such as would be outside the competence of the Government to agree and Dáil Éireann within its specific financial constitutional remit to approve For the reasons already set out that conclusion is based solely on a consideration of Irish constitutional law and does not therefore determine any of the issues raised by Deputy Pringle as to the alleged incompatibility of either the ESM Treaty or the Council Decision with EU law 8 17 I now propose to turn to the reason why I supported this court s decision not to grant an interlocutory injunction in favour of Deputy Pringle 9 The Injunction Claim 9 1 A starting point on the considerations which apply to the grant or refusal of an injunction to restrain ratification of an international treaty requires a return to an aspect of the decision of this court in Crotty Subsequent to the rejection of Mr Crotty s claim in the High Court and the bringing of an appeal to this court the question of the grant of an interlocutory injunction to restrain ratification pending that appeal arose This court was persuaded that a fair issue to be tried had been made out by Mr Crotty In addition Finlay C J speaking for the court said the following at p 763 As to the second question whether the balance of convenience justifies the granting of an interlocutory injunction the balance of convenience in the context of the Constitution is exceptional and considerations different to those of the ordinary injunction apply If the interlocutory injunction sought by the plaintiff were not granted then the Government s act of ratification would deprive this Court of its jurisdiction or power to grant to the plaintiff the remedies necessary to protect his constitutional rights If that submission is correct a fair argument has been made out and it constitutes what in my view would justify making an exception given a reluctance to interfere with the Executive I am satisfied that in order to do justice to the parties the injunction should continue 9 2 It seemed to me that the key sentence from the passage cited is the one which notes that this court would be deprived in the absence of an interlocutory injunction of any power to grant the plaintiff the remedies necessary to protect his constitutional rights if he were to succeed However the circumstances which gave rise to that situation need to be examined The SEA purported to amend the treaties of the then EEC If the SEA was ratified by all of the then Member States then the treaties would be amended It would not have been within the power or competence of the Supreme Court of Ireland to make an order which would require the reversal of those amendments Thus if Ireland had ratified the SEA pending the appeal in Crotty to this court and all other states had also ratified the issues raised by Mr Crotty would in effect have become moot 9 3 It seemed to me that the situation with which this court was confronted in this appeal was entirely different Pending a resolution by this court of the sovereignty claim there may or may not have been an argument available to Deputy Pringle along the same lines as that which prevailed at the interlocutory stage in Crotty I express that view in a somewhat equivocal way because unlike the situation that pertained in Crotty the ESM Treaty is not a European Community or Union treaty which would have the effect of amending the underlying legal basis for a Community or Union of which Ireland was a member 9 4 However be that as it may the sovereignty issue has now been found against Deputy Pringle The remaining issues of Irish constitutional law are the power transfer issue and the residual question of whether it might be a breach of the Irish Constitution for Ireland to ratify a treaty which was in breach of the EU treaties The power transfer claim does not affect Ireland s entitlement to ratify the ESM but rather if found to be valid would affect the manner in which Ireland s obligations in respect of the ESM were to be operated on an internal basis The residual constitutional claim is itself entirely dependant on the success of Deputy Pringle on the reference already made It follows that the sort of situation with which this court was faced in Crotty being that there would be no ultimate remedy available in the event of ratification does not apply If the power transfer claim succeeds then the Oireachtas will be constrained to enact a different and constitutionally legitimate form of legislation implementing the ESM Treaty The residual Irish constitutional claim and each of the claims based on European law can only succeed if the Court of Justice so determines However if the Court of Justice does so determine then there is no reality to the ESM continuing as counsel for the State readily and properly conceded Deputy Pringle has therefore a remedy in the shape of whatever determination the Court of Justice might make The situation is therefore radically different from that with which this court was faced in Crotty It also follows that the real question is as to whether Ireland should be restrained from ratification pending the resolution of the reference the other issues having been either decided or not affecting the power to ratify 9 5 Insofar as Finlay C J suggested in Crotty that the considerations which determine where the balance of convenience lies in relation to claims made in a constitutional context may be different to those arising in private civil litigation then it seems to me that that is but an expression of the fact that the sort of considerations which apply in the public law field to the grant of interlocutory relief while based on the same underlying principles as those which apply in private law being to minimise the risk of injustice nonetheless may in their practical application be different to those which arise in private litigation 9 6 In that context it is appropriate to refer to the recent decision of this court in Okunade anor v Minister for Justice Equality Law Reform 2012 IEHC 49 for an analysis of the application of the balance of justice test in the public law field Similar although not necessarily identical considerations apply in determining the proper course to adopt at an interlocutory stage in proceedings involving constitutional issues In that context I should record my agreement with O Donnell J as to the significant weight to be attached in assessing the balance of justice to the fact that the decision making power with which this case is concerned i e the conduct of relations with other nations is specifically conferred by the Constitution on the Government Art 29 4 1 9 7 With those observations made I now turn to a consideration of the proper test to be applied 9 8 There are in my view potential complications about the precise test to be applied by this court in considering an interlocutory injunction pending the resolution of issues referred to the Court of Justice such as those which are the subject of the reference in this case Those issues are even more complicated so far as the reference in respect of the ESM Treaty is concerned by the fact that that treaty is not of course a Union measure at all 9 9 The question is as to whether the appropriate principles are those identified in the Irish jurisprudence in cases such as Campus Oil Limited v Minister for Industry and Energy No 2 1983 I R 88 modified perhaps to reflect the public law and constitutional nature of the case or those set out in the decisions of the Court of Justice in cases such as the joined cases of C 143 88 C 92 89 Zuckerfabrik Süderdithmarschen AG v Hauptzollampt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollampt Paderborn 1991 ECR I 415 as well as C 465 93 Atlanta Fruchthandelsgesellschaft mbH v Bundesant für Ernährung and Forstwirtschaft 1995 ECR I 3761 9 10 The Campus Oil test is well settled First the court must decide whether it has been shown by the relevant plaintiff that there is a fair issue to be tried Thereafter the court may consider whether damages would be an adequate remedy although the relevance of such a consideration in the public law field may be doubted Third where damages would not be an adequate remedy the balance of convenience must be considered The relevant test in relation to the grant of interim measures where European Union law arises is to be found at para 51 of the decision in Atlanta where the Court of Justice indicated that injunctive relief might be granted by a national court in relation to a national administrative measure adopted in implementation of a Union act only if i The court entertains serious doubts as to the validity of the Union Act and if the validity of the contested act is not already in issue before the Court of Justice itself refers the question to the Court of Justice ii There is urgency in that the interim relief is necessary to avoid serious and irreparable damage being caused to the party seeking the relief iii The court takes due account of the Union interest iv In its assessment of all those conditions it respects any decisions of the Court of Justice or of the now General Court of the European Union formerly the Court of First Instance ruling on the lawfulness of the regulation or on an application for interim measures seeking similar interim relief at Union level 9 11 There are thus some differences between the two tests Under Campus Oil only a fair issue to be tried needs to be established Under Atlanta the court must entertain serious doubts about the validity of the measure It is at least arguable that the strength of the case needs to be established to a higher degree to meet the Atlanta test 9 12 In my view it may be necessary in another case to analyse with some care whether and if so to what extent there may be other substantial or material differences between those two tests There is no doubt that at a minimum the tests laid down by the Court of Justice in the cases to which reference has been made require a national court in considering whether to grant an interlocutory injunction to have regard to the Union interest However it does not seem to me to be necessary on the facts of this case to engage in any such analysis 9 13 In my view whether viewed as a matter of the domestic Irish jurisprudence or on the basis of the tests laid down in the jurisprudence of the Court of Justice the balance in this case is overwhelmingly in favour of the refusal of an injunction Deputy Pringle can only succeed in these proceedings in preventing the ESM from coming into or continuing in operation if he persuades the Court of Justice that it is not possible for Member States of the European Union consistent with their obligations under the EU treaties to participate in the ESM and to the extent that the Council Decision might on one view be necessary to provide a legal basis for such participation that the Council Decision is invalid If Deputy Pringle succeeds in so persuading the Court of Justice then he will have his remedy If he does not succeed then he will be found to have no interests to protect To the extent that there might be any theoretical detriment in allowing ratification to go ahead in circumstances where participation in the ESM might be determined to be inconsistent with obligations found in the EU treaties that detriment is significantly tempered by the fact that success for Deputy Pringle will require that all Member States respect the decision of the Court of Justice so that the ESM will be unable to continue in the absence of further legitimate measures and the Member States will need to put in place an appropriate regime for dealing with that situation which is consistent with the EU treaties Thus the only detriment will at most be largely theoretical and certainly short term 9 14 On the other hand if Ireland were to be prevented by injunction from ratifying the Treaty at this stage but if the Court of Justice was ultimately to find that the ESM could proceed without any Member States being in contravention of their obligations under the EU treaties then very significant detriment indeed would be caused at least to Ireland which would be deprived of its ability to participate from the beginning in the ESM and possibly to other Member States as well The State has placed before the court on this issue cogent evidence from the affidavit of Mr O Brien of the Department of Finance as to the serious risks to the national interest that such a course of action would involve 9 15 If Deputy Pringle succeeds before the Court of Justice then the ESM will fall for all Member States If Deputy Pringle fails before the Court of Justice but Ireland is excluded from participation pending the result of the reference then significant detriment to the national interest is risked 9 16 This court did not of course enter into a discussion of the merits of Deputy Pringle s claim insofar as the relevant issues were referred to the Court of Justice In order to conclude in accordance with Atlanta that the court entertains significant doubts about any relevant matters then it might well have been necessary for the court to enter into such a consideration In addition it would have been necessary to consider whether and if so in what way the Atlanta principles apply in the different circumstances which arise in this case where it is suggested that a Member State might be acting in breach of its obligations under the EU treaties by entering into a separate multi lateral international treaty with other Member States Atlanta was concerned with the effect on a private company of national measures designed to implement a Union act where it was argued that the Union act was invalid However whether viewed as an order required to avoid serious and irreparable damage in accordance with Atlanta or one required to meet the balance of convenience as per Campus Oil it seems to me that Deputy Pringle s claim for an interlocutory injunction fails 9 17 Irrespective therefore of the precise test to be applied I was satisfied that the balance of justice overwhelmingly favoured the refusal of an injunction In those circumstances I did not consider it necessary to form a view on the precise test to be applied for it did not seem to me that a determination on that question was decisive in this case 10 Conclusions 10 1 For those reasons I supported the court s ruling to the effect that ratification of the ESM Treaty did not involve an impermissible transfer of sovereignty and thus that the sovereignty claim should be dismissed I was satisfied that ratification of the ESM Treaty would not abdicate alienate or subordinate constitutional power conferred on the Government to another 10 2 I also agreed with the court s view that the issues referred to in the draft reference annexed to the court s ruling should be referred to the Court of Justice 10 3 For the reasons set out in section 9 of this judgment I supported the court s ruling which refused to grant an interlocutory injunction against ratification 10 4 Finally I agreed with the court s decision to leave over all other issues arising on this appeal until the Court of Justice has ruled on the reference THE SUPREME COURT Appeal No 339 2012 Denham C J Murray J Hardiman J Fennelly J O Donnell J McKechnie J Clarke J Between Thomas Pringle Plaintiff Appellant and The Government of Ireland Ireland and the Attorney General Defendants Respondents Judgment of Mr Justice Clarke delivered the 19th of October 2012 1 Introduction 1 1 On the 11th July 2011 those of the Member States of the European Union who are also members of the euro area agreed the Treaty Establishing the European Stability Mechanism respectively the ESM Treaty or simply the Treaty and the ESM The ratification procedure for the ESM Treaty in the subscribing Member States is under way Ireland had not when these proceedings came before this court ratified the Treaty It is in that context that these proceedings were brought by the plaintiff appellant Deputy Pringle who is an Independent Member of Dáil Éireann 1 2 Deputy Pringle alleged that the ratification by the Irish government of the ESM Treaty would be in breach of the Constitution Deputy Pringle also alleged that the ESM Treaty was inconsistent with aspects of the treaties of the European Union and in particular certain provisions of the Treaty on the Functioning of the European Union TFEU so that it was said Ireland s ratification of the ESM Treaty and membership of the ESM would entail obligations which were incompatible with the EU treaties 1 3 In addition Deputy Pringle asserted that in the absence of the Government being prepared to give an undertaking to the court that it would not ratify the ESM Treaty pending the outcome of these proceedings an injunction should be granted restraining the Government from such ratification 1 4 It should also be noted that the European Council has adopted European Council Decision 2011 199 EU on the 25th March 2011 the Council Decision The precise interaction between the Council Decision and the ESM Treaty will need to be considered later in this judgment However on a number of bases Deputy Pringle asserts that the Council Decision is inconsistent with the EU treaties and is therefore invalid 1 5 These proceedings moved with considerable urgency A plenary summons was issued in the High Court on the 13th April 2012 with a statement of claim being delivered on the 25th April Detailed particulars were exchanged with a defence being filed on behalf of the defendants respondents the State on the 1st June and a reply being filed on behalf of Deputy Pringle on the 11th June The matter was listed for an expedited hearing before Laffoy J and was heard between the 19th and the 29th June 1 6 On the 9th July Laffoy J gave a brief outline ruling as a result of which subject to one matter Deputy Pringle s claim was dismissed in its entirety At para 4 of the order made on that day Laffoy J indicated that one part of Deputy Pringle s claim should be referred to the Court of Justice of the European Union On the 17th July a detailed written judgment was delivered by Laffoy J setting out her full reasons Deputy Pringle appealed against the judgment and order of Laffoy J to this court 1 7 This judgment deals with some but not all aspects of the issues which were raised by Deputy Pringle s appeal In order to set out why this judgment is directed to only some of the issues raised it is necessary to say something about the procedural history of this appeal before this court I therefore turn to the procedural history 2 Procedural History 2 1 As noted earlier Laffoy J gave an oral ruling on the 9th July setting out in summary form her conclusions On the same day counsel for Deputy Pringle and counsel for the State applied to this court for an expedited hearing It will be necessary to return briefly to the issues said to give rise to urgency However this court concluded that it would endeavour to provide such an expedited hearing in respect of at least some of the issues which arose on the appeal and fixed the week of the 23rd July for that hearing The court arranged for the appeal to be listed for case management on the previous Friday being the 20th July At that case management hearing a number of practical issues were canvassed 2 2 By that time the parties had filed detailed written submissions From those submissions it appeared to the court that at least in broad and general terms it was possible to group the issues which seemed likely to arise on the appeal as a whole in the following manner a Issues which arose from the arguments which suggested that as a matter of Irish constitutional law the adoption and proposed ratification by Ireland of the ESM Treaty would amount to an impermissible delegation of the sovereignty of the State and an excessive exercise by the government of its executive powers in conducting the external relations of the State the sovereignty claim b Issues which derived from the claim that the legislation enacted by the Oireachtas to implement the ESM Treaty in Ireland the European Stability Mechanism Act 2012 the 2012 Act involved a constitutionally impermissible transfer of power from the Oireachtas and in particular the Dáil to the Minister for Finance the power transfer claim c Issues arising from the claim that Member States contracting in accordance with the provisions of the ESM Treaty would undertake obligations which would be in contravention of provisions of the Treaty on European Union TEU and the TFEU concerning economic and monetary policy and would directly allow encroachment on what were said to be exclusive competences of the Union in the matter of the euro and related policies the ESM Treaty claim d Issues arising from the argument that the Council Decision is invalid as a it was not lawfully adopted because of the use of the simplified revision procedures provided for by Art 48 6 of the TEU it being said that the Council Decision involves an alteration of the competences of the Union contrary to the third paragraph of that article and also b because it is said that the Council Decision is inconsistent with provisions of the Treaties concerning economic and monetary union and general principles of the law of the European Union in particular the principle of legal certainty the Council Decision claim and e Issues concerning whether it is appropriate to grant an injunction to restrain the State from ratifying the ESM Treaty pending a final resolution of these proceedings the injunction claim 2 3 It is perhaps appropriate to note one possible refinement of that analysis Counsel on behalf of Deputy Pringle argued that there was a potential connection between at least some of the arguments raised under what might loosely be called the EU element of the appeal that is the ESM Treaty claim and the Council Decision claim and the argument raised concerning the alleged inconsistency of ratification with the Constitution In brief it was argued by counsel that the fact that the people of Ireland adopted the EU treaties and in particular the Maastricht Treaty which provided for the measures necessary to establish the euro meant that a material alteration to that regime which was in breach of those treaties was it was said also in breach of the Irish Constitution It is obvious that this issue only arises in the event of the alleged incompatibility of the ESM Treaty with the EU treaties being established It should be noted that counsel for the State argued that such questions were matters of EU law only and had no bearing on the Irish constitutional position 2 4 The court was concerned to ensure that any issues in respect of which real urgency arose were afforded as early a hearing as could be facilitated In that context counsel on both sides were invited to indicate the basis of any urgency asserted On behalf of Deputy Pringle it was said that urgency only arose in the event that there was no undertaking given on behalf of the State or injunction imposed by the court which would have the effect of preventing the State from ratifying the ESM Treaty pending a resolution of these proceedings The argument of counsel for the State was in a sense the mirror image It was said that the matter was not urgent strictly speaking because the State was not constrained from ratifying the Treaty However it was acknowledged that the Government would be reluctant to ratify the Treaty while a challenge based on purely Irish constitutional grounds was before this court On the other hand counsel indicated that it was the view of the Government that it would be contrary to the national interest for the Treaty to come into effect without as counsel put it Ireland having a seat at the table 2 5 In that context it is appropriate to mention the practicalities which surround the ratification of the ESM Treaty In order for the Treaty to come into effect it is necessary that it be ratified by countries representing at least 90 of the capital sums to which the ESM Treaty would require subscribing states to commit It is clear that the allocation to Germany represents a sum of 27 1464 of that capital so that the 90 barrier cannot be reached without the support of Germany in passing it should be noted that France Italy and Spain also have allocations in excess of 10 so that overall ratification is not possible without the individual ratification of each of those countries as well In any event German ratification had been delayed pending a decision of the German Constitutional Court When the matter was first mentioned before this court counsel for the State indicated that it was possible that at least a preliminary ruling of the German Constitutional Court which might on one view clear the way for German ratification could be given prior to the end of July However by the time of the case management hearing to which reference has been made it had become clear that the relevant preliminary ruling was not to be delivered until at least the 12th September when it was in fact delivered 2 6 However counsel on behalf of the State indicated that it was the Government s view that in the event that the ruling of the German Constitutional Court was such as permitted German ratification a sufficient level of ratification would occur very soon after the 12th September so as to allow the Treaty to come into effect The Government s concern as expressed by counsel and supported by affidavit evidence filed on behalf of the State was that it would not be in Ireland s interest if that were to occur without Ireland being a participant from the beginning It was in the same context that counsel had when the case was first mentioned before the court indicated that the Government was willing to give an undertaking not to ratify pending a hearing in this court on the sovereignty claim provided that the court was able to accommodate an expeditious hearing Counsel for the State also explained the Government s view that early ratification even before any decision of the German Constitutional Court was important as a measure designed to build international confidence in Ireland and thus it was said increase the chances of Ireland being in a position to return to the international lending markets 2 7 A second matter touched on at the case management hearing was the question of a possible reference to the Court of Justice under Art 267 of the TFEU Counsel for Deputy Pringle suggested that it was almost inevitable that this court as a court of final appeal would be required to make a reference Counsel for the State while acknowledging that there were only limited circumstances in which this court could decline to make a reference nonetheless indicated that there might be matters which the court would wish to consider before making a final decision on whether to make a reference 2 8 Finally a question arose as to whether as counsel for Deputy Pringle argued the issues of Irish constitutional law which arose on the appeal were so inextricably linked with issues of European Union law that it would not be possible to reach any conclusions on the Irish constitutional issues until a reference had been made and answered by the Court of Justice On the other hand counsel for the State argued that there were matters of Irish constitutional law which could and should be determined by this court independent of any matters which might require to be the subject of a reference to the Court of Justice 2 9 Having considered the submissions of counsel the court came to the view without reaching a final conclusion that it was possible that there were issues of pure Irish constitutional law which the court could and should determine independent of any reference to the Court of Justice The court was persuaded that any such issues being the sovereignty claim were ones of real urgency and that argument should be heard on those issues and if possible a determination given in relation to same at the earliest possible date The court listed those issues for hearing on Tuesday the 24th July In addition it should be noted that the court decided to direct a system of fixed periods for all oral submissions on those issues allocating two hours to Deputy Pringle s side a further two hours to the State in response and half an hour to Deputy Pringle in reply 2 10 Second the court indicated that it would list on Thursday the 26th July the question of whether and if so in what form a reference should be made to the Court of Justice The court indicated that it would endeavour to provide the parties on Tuesday the 24th with the court s suggested draft of such a reference A draft reference was so provided 2 11 The court also indicated that it would hear counsel on the question of whether it was appropriate to restrain the Government pending a final resolution of all of the issues which arise in these proceedings from ratifying the ESM Treaty with such argument also to be heard on Thursday the 26th The court left over all other questions until a future date For the reasons which follow I supported the court s decision so to do 2 12 The remaining issues did not seem to me to be of the same level of urgency If it were found to be permissible as a matter of pure Irish constitutional law for Ireland to ratify the ESM Treaty then the precise mechanism which might be employed for Ireland s participation and in particular any question as to the extent of the oversight by the Dáil over the exercise by the Minister for Finance of his role in the ESM Treaty would be an entirely internal Irish matter over which this court could exercise effective control Thus the power transfer claim did not seem to me to be of the same level of urgency as the other claims 2 13 Likewise the argument raised as to the interconnection between aspects of the claims based on EU law and the Irish constitutional claims seemed to me to be one which could await the result of the reference to the Court of Justice for further consideration Indeed by then the point may well be moot for if the Court of Justice finds for the State then the point does not arise and if the Court of Justice finds for Deputy Pringle then it seems highly unlikely that the ESM Treaty in its present form could go ahead at least without further measures being adopted 2 14 Having conducted the hearings referred to the court on the 31st July made a ruling on the issues there argued It should be noted that as a result of hearing the observations of the parties on the question of a possible reference the court had invited counsel on both sides to attempt to agree certain amendments to the draft reference which had been provided to the parties by the court Counsel very helpfully supplied an agreed amended version of the reference On further consideration the court made a number of relatively minor further adjustments The final form of the reference was annexed to the Ruling of the Court delivered on the 31st July 2 15 It should also be recorded that counsel for the State did not strongly press the suggestion that no reference was appropriate In addition counsel on both sides were agreed that if there was to be a reference it should encompass not simply questions concerning the validity of the Council Decision but also questions arising from the ESM Treaty issue and a question concerning the entitlement of a Member State to enter into and ratify the ESM Treaty pending the entry into force of the Council Decision 2 16 It followed that all of the EU issues which arose in these proceedings were referred by this court to the Court of Justice This court requested the Court of Justice to apply to the reference the accelerated procedure pursuant to Art 104a of the Rules of Procedure of the Court of Justice The result of the reference is still awaited 2 17 In addition however on the 31st July this court ruled that the ESM Treaty did not involve a transfer of sovereignty so

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  • stage did Mr Shaw object to this proposed course of action and indeed if anything appeared to be relieved as his Clients had more than enough to do in dealing with the Tribunal 10 Having regard to the constant attendance by the Persona s legal representatives at the Tribunal and the aforementioned conversations the State are well aware of Persona s intention to prosecute these proceedings During the course of the Tribunal hearings Tony Boyle a director of Persona has given evidence and has been subjected to cross examination by Counsel on behalf of the Minister During the course of that cross examination Counsel for the Minister has referred to the existence of the proceedings and while suggesting that the Tribunal is being used as a kind of stalking horse for the proceedings which Mr Boyle did not accept never made any complaint about any alleged delay or prejudice being suffered by the Minister or any of the other State Defendants 11 The within proceedings are serious and complex and involve the assimilation of a large volume of information and evidence Certain information and avenues of inquiry have been identified during the course of the public sittings which have assisted Persona in the preparation of their case and the assimilation of evidence outside of the Tribunal The prosecution of the case is not however dependent upon any particular finding by the Moriarty Tribunal and it is Persona s intention to proceed with these proceedings irrespective of what conclusion the Moriarty Tribunal may come to 12 Representatives of the State have given evidence to the Moriarty Tribunal as to their involvement in the licence competition That module of the Moriarty Tribunal has not been completed yet as far as I am aware no complaint has ever been made by or on behalf of the State or the officials of the Department of any prejudice due to the remove in time between the Tribunal hearings and the events under investigation dating back to 1995 Furthermore it is apparent from the public hearings of the Tribunal that considerable documentation is available to assist the various Department officials in their recollection of events where such is necessary 13 The timing of the issue of the current motion is of significance As appears from exhibit MS1 to Mr Shaw s Affidavit no complaint was made between 2002 and 2006 in respect of Persona s failure to deliver a Statement of Claim On the 23rd March 2006 I served on the Chief State Solicitor s Office a Notice of Change of Solicitor Within a week of receipt of that letter Mr Shaw wrote to me seeking the delivery of a Statement of Claim and consenting to its delivery within 21 days Nowhere in that letter does Mr Shaw complain of any prejudice on the contrary he invites Persona to proceed with their claim and it is difficult to understand what has occurred between that date 31st March 2006 and 26th May 2006 to bring about such a fundamental change in approach Persona believe s and I concur that the request for the delivery of a Statement of Claim made immediately after the service of a Notice of Change of Solicitor was done so to catch the plaintiffs on the hop I had in fact sought a short extension of the 21 day period on 5th 11th and 21st April 2006 but never received any response to that request I beg to refer to copies of the three letters upon which marked with the letter WJ I have endorsed my name prior to the swearing hereof Furthermore I also rang the Office of the Chief State Solicitor on a number of occasions and left messages but my calls were largely ignored and disregarded In fact the Statement of Claim was delivered within the 21 day period allowed in the letter of 31st March 2006 Application to strike out proceedings 32 As may be seen from the affidavit of William Jolley quoted previously the position of Persona was also that they were following the evidence likely to unfold at the Tribunal Further that the State were aware of this approach 33 On Monday the 9th May 2005 the High Court Kelly J ordered in both of the proceedings by Comcast that unless Comcast do within 28 days from the 9th May 2005 deliver a statement of claim to the fourth named defendant Mr Denis O Brien that Comcast s claims would stand dismissed for want of prosecution as against the fourth named defendant for failure to deliver a statement of claim within the time prescribed by the Rules of the Superior Court 34 The statements of claim in both Comcast proceedings were delivered on the 3rd June 2005 i e within the time required by the order of the High Court 35 Thus Comcast had met the requirements of the High Court order 36 On the 28th July 2005 the solicitors for the fourth named defendant sought further particulars in the Comcast proceedings The replies to notice for particulars are dated the 12th January 2006 On the 7th March 2006 a notice of change of solicitor on behalf of the fourth named defendant was filed On the 15th May 2006 a defence and counterclaim on behalf of the fourth named defendant was served On the 14th November 2006 a defence to the counterclaim was delivered on behalf of Comcast and notice of particulars sought on behalf of Comcast on the counterclaim 37 It was in the midst of these circumstances that on the 26th May 2006 the State issued the motion the subject of this appeal to dismiss the proceedings against the State Decision on excusability 38 It is clear from the evidence before the High Court and this Court that the primary reason for the delay in the proceedings was the decision taken by Comcast and Persona to await the completion of the investigative section of the Tribunal into the granting of the licence 39 Usually a deliberate decision by a party to delay proceedings is not excusable but this case is unique for a number of reasons These reasons include the following i The facts which form the foundation for the claim were being investigated by a Tribunal of Inquiry at the same time as the proceedings were contemplated and then commenced ii The nature of the facts alleged are very serious and rare i e a claim of corruption of a Minister of the Government iii In addition the facts in such proceedings are of their nature very difficult to expose and particularize iv Also the case is complex v Counsel for Comcast put the matter starkly stating that the excuse for the delay was that the appellants were not in a position to prosecute the claim in any wholly informed way until they were educated by the investigative hearings of the Tribunal vi It is relevant also that during the time in issue the State took no active step to advance the court proceedings On the facts the State took no steps to advance the proceedings from the serving of the three plenary summonses in 2002 to April 2006 when the State gave consent to the late filing within a specific time of Persona s statement of claim in April 2006 which was delivered within that time on the 21st April 2006 However the State in May 2006 issued motions to dismiss for want of prosecution each of Persona s and Comcast s proceedings which became the subject of this appeal In contrast to the State s inaction a natural person Mr Denis O Brien who is the fourth named defendant in the Comcast proceedings in late 2004 sought to dismiss for want of prosecution Comcast s claims against him by application to the Master of the High Court which was refused and then by application to the High Court which was also refused if Comcast delivered its statement of claim to Mr O Brien within 28 days of the order of the High Court which was made on the 9th May 2005 Comcast delivered the statement of claim to Mr O Brien within the time limit set by the order and delivered the statement of claim to the State on the 3rd June 2005 Mr O Brien then sought particulars from Comcast which were provided by Comcast in January 2006 and Mr O Brien delivered a defence and counterclaim in May 2006 to which Comcast responded to in November 2006 Thus the High Court addressed the issue of delay in 2005 and required the statement of claim to be delivered rather than dismiss the proceedings the sequence of events that followed demonstrated the engagement by Comcast with a party who sought to advance the progression of the proceedings in 2005 and 2006 and provides context to view the State s response to the appellants proceedings In all the unique circumstances of this case there was at the very least a de facto acquiescence in the delay in the proceedings on the State s behalf vii The inaction of the State between 2002 to 2006 in these proceedings even continued after the statements of claim of Comcast were delivered when they failed to react to the delivery of the first two statements of claim in 2005 The State did not proceed to seek particulars such as would be expected in a complex case viii During those years 2002 to 2006 all the parties to one degree or another were engaged in and monitoring the investigations of the Tribunal into the granting of the licence ix An unusual feature of the case is that as a consequence of the Tribunal inquiries witnesses have made statements and given oral evidence relevant to the granting of the licence Consequently evidence has been gathered because of the investigative hearings of the Tribunal Thus while the appellants would need to present their evidence in proceedings before the courts this is not a case where years after an event with no intervening warning defendants are required to defend a claim x The State was on notice of the appellants approach i e of the appellants decision to wait until the investigative section of the Tribunal into the granting of the licence had progressed before serving the statements of claim This notice may have been express in accordance with the evidence deposed by William Jolley as set out above of conversations between Mr Moloney and Mr Shaw It was not contradicted Or the position may have been implied Whichever way the situation is considered the facts are that the State was participating in the Tribunal had been served with the plenary summonses in these proceedings and yet took no step to seek to advance these proceedings during these years Indeed the State did not object until the 29th May 2006 when it filed its motions to dismiss for delay and or want of prosecution I take this at the very least as a de facto acquiescence in the delay in the proceedings pending the conclusion of the investigative sessions of the Tribunal in all the unique circumstances of the case xi Persona relied on the letter of the 31st March 2006 as indicating the State s position The letter stated Please note that if you do not file a statement of claim on behalf of your clients within 21 days from the date hereof I am instructed to proceed with a notice of motion seeking to strike out these proceedings for want of prosecution without further notice to you You might further note that on behalf of the State I hereby consent to the late filing of the statement of claim by you up to and including 21 days from date hereof Persona responded by delivering their statement of claim within 21 days Persona s reliance on the terms of the letter including the consent to the late filing of the statement of claim was a reasonable position xii In the special circumstances because of the nature of the claim of corruption where it is alleged that the wrongs in this case were concealed and covert this approach by the appellants and indeed by the State is understandable The Tribunal was investigating the wrongs claimed by the appellants it had the resources and could compel witnesses to advance its investigation into the circumstances of the licence xiii Of course the findings of the Tribunal are under current law not admissible in the civil proceedings and the appellants do not seek to admit such findings However the investigations of the Tribunal have exposed information facts documents and witnesses of assistance to the appellants The appellants awaited the completion of the investigative stages of the Tribunal they did not await the Report xiv No actual prejudice was found to attach to the State The learned High Court judge held that While no actual prejudice has been referred to I am satisfied that there is presumed prejudice on a moderate level However there was no claim of specific prejudice to the State such as the death of a witness References as to prejudice were general such as in the grounding affidavit of Mr Shaw where he states at paragraph 13 w hile the statement of claim was delivered I say the plaintiff s delay has been inordinate and inexcusable and therefore prejudicial The submissions to this Court have a section on prejudice where issues such as reputational damage and the difficulty of meeting the award of damages inter alia are considered In fact in the absence of an evidential foundation for a finding of specific prejudice e g no absence of witnesses alleged no concrete difficulty alleged any analysis of the issue of prejudice would be a matter of speculation 40 In general it is not open to a party to decide unilaterally not to proceed with proceedings in a case for a particular time and reasons However in the interest of fair and just proceedings there are exceptions This is one such exception where in the interests of justice I find that the delay is excusable 41 An analogy may be drawn between this case where there was a unique situation arising from the hearing of a Tribunal and civil proceedings and the decisions in Cosgrave v Director of Public Prosecutions 2012 IESC 24 and Kennedy v Director of Public Prosecutions 2012 IESC 34 While a Tribunal is not the administration of justice the use of that model to investigate matters of public interest may have an effect on legal decisions as to when to advance court proceedings While there are limitations on a tribunal of inquiry e g the findings are legally sterile the existence and working of a tribunal are facts which the Court recognises and which may as in this case be relevant to the process of litigation 42 In the unique circumstances of this case for the reasons given I am satisfied that the delay is excusable As I find the delay to be excusable there are no grounds to dismiss the proceedings 43 As I am satisfied that the delay is excusable it is not necessary to proceed to the third aspect of the Primor test i e the test to determine as a matter of discretion whether the balance of justice is in favour of or against the proceedings continuing 44 However if it had been necessary to consider this aspect of the test I would have determined as a matter of discretion on the facts that the balance of justice is in favour of the case proceeding In such a determination I would take into account i the fairness to both parties in all the circumstances ii the absence of specific prejudice to the State iii the fact that the parties and witnesses have over the years given statements and evidence before the Tribunal so that the situation is not one where proceedings are commenced or continued long after events where there has been no reference to the facts in the meantime iv the delay by the State during the proceedings v the conduct of the State which was a de facto acquiescence during 2002 to 2006 vi the fact that the State stated in a letter of the 31st March 2006 that a motion to dismiss would be brought if the statement of claim was not delivered within the time period specified and consented to an extension of time for Persona to deliver its statement of claim and Persona complied with the terms of the letter vii in all the circumstances there is no risk to a fair trial or serious prejudice to the State viii these proceedings make serious allegations of corruption by a Minister of the Government not a matter which should be struck out on a technicality but which should be addressed in a full hearing in open court In submissions it was argued by the State that the appellants actions were not in the public interest but were private commercial interests However this is not a case between private companies rather it involves allegations of corruption by a Minister of State There is a public interest in determining such a claim of corruption in high office It is a matter of public interest as to whether a Minister of Government corrupted a State process This is an important aspect of the case 45 The parties in essence argued the appeal in the Primor principles It is not an appeal relating to delay in a criminal trial and thus that jurisprudence is not of assistance Interests of Justice 46 There was a free standing issue raised as to whether the interests of justice enable the claim to be dismissed However Primor pointed out that the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so Thus the foundation for this common law is the interests of justice Primor sets out a methodology In applying that methodology in analysing the facts of a case the Court is required to consider all the circumstances of the case Consequently applying the principles described in Primor addresses the interests of justice of the case Conclusion 47 On the unique facts of this case for the reasons given I would allow the appeals THE SUPREME COURT Appeals No 216 215 and 213 Denham C J Hardiman J Fennelly J McKechnie J Clarke J High Court Record No 2001 No 9288P Between Comcast International Holdings Incorporated Declan Ganley Ganley International Limited and GCI Limited Plaintiffs Appellants and Minister for Public Enterprise Michael Lowry Esat Telecommunications Limited Denis O Brien Ireland and the Attorney General Defendants Respondents High Court Record No 2001 No 15119P Between Comcast International Holdings Incorporated Declan Ganley Ganley International Limited and GCI Limited Plaintiffs Appellants and Minister for Public Enterprise Michael Lowry Esat Telecommunications Limited Denis O Brien Ireland and the Attorney General Defendants Respondents High Court Record No 2001 No 9223P Between Persona Digital Telephony Limited and Sigma Wireless Networks Limited Plaintiffs Appellants and Minister for Public Enterprise Ireland and the Attorney General Defendants Respondents Reasons delivered on the 17th day of October 2012 by Denham C J 1 These three appeals were heard together by this appellate court as they had been heard together by the High Court 2 The appeals were heard on the 10th 11th and 12th July 2012 3 On the 17th July 2012 the Court indicated that it would allow the appeals and that reasons would be given in October 4 In this judgment I deliver the reasons why I would allow the appeals 5 These proceedings were commenced consequent to the decision of the Minister for Public Enterprise hereinafter referred to as the Minister made on the 25th October 1995 to award the second GSM mobile telephone licence hereinafter referred to as the licence to ESAT Telecommunications Limited hereinafter referred to as ESAT On the 2nd March 1995 the Minister had announced a bid process for the licence The deadline for receipt of tenders was extended on the 16th June 1995 from the 23rd June 1995 to the 4th August 1995 and the result of the competition was announced on the 25th October 1995 Three sets of proceedings 6 The three sets of proceedings were commenced as follows i In the first set of proceedings the plaintiffs appellants referred to as Comcast issued a plenary summons on the 15th June 2001 which was served on the 14th June 2002 The first set of proceedings relate primarily to the decision of the Minister on the 16th June 1995 to extend the deadline of the 23rd June 1995 for the receipt of tenders for the award of the licence The proceedings seek a declaration that the decision is null and void and there is a claim for damages for alleged breach of statutory duty misfeasance in public office breach of or procuring a breach of the Prevention of Corruption Act 1906 fraud deceit breach of duty and breach of contract The defendants respondents excluding the State defendants respondents are referred to as the respondents The State defendants respondents who are referred to as the State entered an appearance on the 20th June 2002 A statement of claim was delivered on the 3rd June 2005 6 ii In the second set of proceedings serious allegations were made by Comcast primarily the cause of action and the remedies sought are in relation to the decision of the 25th October 1995 The plenary summons was issued on the 10th October 2001 and served on the 4th October 2002 An appearance was entered on behalf of the State on the 16th December 2002 A statement of claim was served on the 3rd June 2005 6 iii In the third set of proceedings a plenary summons was issued by the plaintiffs appellants hereinafter referred to as Persona on the 15th June 2001 which was served on the 10th June 2002 The summons claimed damages including exemplary damages for misfeasance in public office breach of duty including statutory duty breach of contract breach of legitimate expectations of Persona breach of constitutional rights of Persona breach of rights under EU law and a declaration that the European Communities Mobiles and Personal Communications Regulations 1996 hereinafter referred to as the Regulations of 1996 contravene EU law An appearance was entered on behalf of the State on the 20th June 2002 The statement of claim was delivered on the 21st April 2006 Motions 7 The State brought motions dated the 26th May 2006 and filed on the 29th May 2006 giving notice that on the 26th June 2006 at 11 00 a m or at the first available opportunity thereafter counsel for the Minister Ireland and the Attorney General would apply for the following reliefs i An order pursuant to the inherent jurisdiction of the court dismissing the proceedings as against the Minister Ireland and the Attorney General for delay and or want of prosecution ii An order pursuant to the inherent jurisdiction of the court dismissing the proceedings as against the Minister Ireland and the Attorney General in the interests of justice iii Such further and ancillary orders as the court may deem proper and appropriate 8 The motions were heard by the High Court Gilligan J on the 8th and 9th February 2007 and judgment was delivered on the 13th June 2007 On the 3rd July 2007 the High Court through its orders dismissed for inordinate and inexcusable delay Persona s action and both actions taken by Comcast The orders were perfected on the 9th July 2007 The High Court Judgment 9 i In the High Court the learned High Court judge found that there was no significance material difference between the applications brought by the State and the grounds of defence raised by Comcast and Persona referred to as the appellants and as a consequence all three motions were heard together The High Court decided to deliver one judgment in respect of the three motions on the three sets of proceedings 9 ii The learned High Court judge held that there was no dispute between the parties that the delay was inordinate So the first issue that arose for determination in the High Court was whether or not the delay was inexcusable The learned High Court judge held My overall conclusion is that I do not consider that the excuses offered by the appellants and in particular that they were monitoring the hearings of the Moriarty Tribunal into the award of the second GSM mobile telephone licence and hence did not deliver a statement of claim an explanation that constitutes a valid excuse and accordingly I come to the conclusion that the delay involved in the prosecution of all three claims herein is not only inordinate but also inexcusable The delay in my view goes beyond the minimum which may be considered inordinate 9 iii As the High Court had come to the conclusion that the delay was inordinate and inexcusable that Court moved on to consider whether the balance of justice favoured the advancement or not of the proceedings The High Court pointed out that no case was made by the State of any specific prejudice having occurred by reason of the inordinate and unreasonable delay The learned High Court judge stated that the appellants and the State had contributed to the delay involved He also stated In the particular circumstances of this case all the parties who are involved in these three sets of proceedings were parties with an interest in the matters being dealt with at the Moriarty Tribunal The relevant parties to these proceedings were present on every hearing date relating to any matters touching on the subject matter of these proceedings 9 iv The High Court stated that the State would suffer a presumed prejudice if the appellants were permitted to proceed with their actions and assessed the prejudice as moderate Having analysed the situation further he stated I come to the conclusion that where responsibility for inordinate and inexcusable delay rests primarily with the appellants where there is presumed prejudice of a moderate nature where the issues to be determined are of a very substantial commercial nature where the actions leading to the delay involved are deliberate and conscious where the prospects of a fair trial have been undermined where the appellants have failed after a late start to advance their proceedings expeditiously the balance of justice favours the dismissal of the proceedings and accordingly I dismiss the appellants proceedings as against the State for want of prosecution 9 v The High Court also addressed the application brought pursuant to the inherent jurisdiction of the Court to dismiss the appellants claim in the interests of justice where reliance was placed on Article 6 of the European Convention on Human Rights Reference was made to O Domhnaill v Merrick 1984 I R 151 Toal v Duignan No 1 1991 ILRM 135 Toal v Duignan No 2 1991 ILRM 140 especially at pp 142 143 and McMullen v Ireland ECtHR application No 42297 98 29th July 2004 The learned High Court judge held In my view for this Court to be asked in 2009 to determine primarily issues of fact that will have occurred at the time of the prospective hearing date some 14 years previously gives rise to a basic unfairness of procedures undermines the State s ability to have a fair trial creates a clear and patent unfairness in asking the State to defend the action and clearly fails to provide the State with a hearing within a reasonable time of the alleged cause of action having occurred In essence in my view in a case such as this it puts justice to the hazard to such an extent that it would be a derogation sic of basic fairness to allow the case to proceed to trial as per Henchy J in O Domhnaill at p 158 In these circumstances I come to the conclusion pursuant to the inherent jurisdiction of the court to dismiss the appellants claim as against the State Notice of Appeal 10 Comcast issued a notice of appeal on the 27th July 2007 Inter alia the grounds of appeal were that the learned trial judge erred in fact and in law in considering that the appellants delay was inexcusable that the learned trial judge erred in law and in fact in considering that the balance of justice was against allowing the case to proceed and that the learned trial judge erred in considering that the appellants proceedings should be struck out in the interests of justice Persona issued a notice of appeal on the 25th July 2007 Inter alia its grounds of appeal were that the learned trial judge erred in law and fact in determining that delay was inexcusable that the balance of justice favoured the dismissal of the proceedings and that the State wrote to Persona stating that if a statement of claim was not delivered within 21 days then a motion for dismissal of proceedings would issue and consented to the late filing of the statement of claim if it was delivered within 21 days Issue Paper 11 An issue paper was produced by the State and was before the Court It set out issues for the Court as follows 11 i Is this delay in these cases excusable the appellants having already conceded the delay was inordinate by reason of the following i the decision of the appellants to adopt a wait and see policy in respect of the hearings of the Moriarty Tribunal the Tribunal having regard to the specific allegations made by the appellants in their pleadings when the cases were initiated ii the appellants contention that if the appellants had attempted to bring on the proceedings during the Tribunal hearings the State would have resisted this course iii Persona s assertion that the State did not believe the proceedings were dormant having regard to a a statement by the former solicitor for Persona to a solicitor from the Office of the Chief State Solicitor in response to a query by the latter that no statement of claim would be delivered in the proceedings for the foreseeable future as Persona were following the Tribunal and b the delivery of a 21 day letter by the Office of the Chief State Solicitor to Persona seeking delivery of a statement of claim within 21 days under threat of a motion to strike out in default iv the nature and extent of the State s own inaction delay v the nature of and the issues in the proceedings vi the time that has elapsed since the events giving rise to these proceedings 11 ii Was the trial judge correct in law in holding that the balance of the interests of justice required the appellants claims to be dismissed having regard to i the overall delay in the proceedings and the relative contributions of the appellants and the State respectively to same ii the deliberate and conscious nature of the decision of the appellants to wait and see iii the holding of the existence of prejudice of a modest nature to the State iv the likely nature and extent of the issues and evidence at the trial v the finding that to ask the State to defend the proceedings would be unfair and undermine their ability to have a fair trial vi the effect of the provisions of Article 6 of the European Convention on Human Rights vii the exercise by the learned trial judge of his discretion having regard to the matters referred to in his judgment as set out above Law 12 In all the circumstances the primary relevant law is that stated in Primor Plc v Stokes Kennedy Crowley 1996 2 I R 495 hereinafter referred to as Primor where the issue was whether proceedings should be dismissed for want of prosecution In delivering a judgment Hamilton C J at p 475 summarised the relevant principles of law as follows a the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so b it must in the first instance be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof that the delay was inordinate and inexcusable c even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case d in considering this latter obligation the court is entitled to take into consideration and have regard to i the implied constitutional principles of basic fairness of procedures ii whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff s action iii any delay on the part of the defendant because litigation is a two party operation the conduct of both parties should be looked at iv whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff s delay v the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not in law constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim the weight to be attached to such conduct depending upon all the circumstances of the particular case vi whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant vii the fact that the prejudice to the defendant referred to in vi may arise in many ways and be other than that merely caused by the delay including damage to a defendant s reputation and business These are the principles of law relevant to the appeals before the Court This is not an appeal relating to a criminal trial and thus the law as to delay and a criminal trial does not apply 13 The nature of an inordinate and inexcusable delay requires to be considered in all the circumstances of the case Thus the factors of each case require to be analysed In addition in recent times there has been an acknowledgement that cases may not be let lie in a laissez faire attitude for the parties to move There is a requirement to ensure that cases are progressed reasonably This approach has been the subject of litigation in Ireland and has also been addressed by the European Court on Human Rights For example in Price and Lowe v The United Kingdom 43185 98 there was an application alleging a violation of Article 6 of the Convention in connection with the length of the proceedings at issue Article 6 provides In the determination of his civil rights and obligations everyone is entitled to a hearing within a reasonable time The ECtHR reiterated that the reasonableness of the length of the proceedings must be addressed in the light of the circumstances of the case and having regard to the criteria laid down in the Court s case law in particular The complexity of the case The conduct of the applicant The conduct of the relevant authorities and The importance of what is at stake for the applicant in the litigation The Court held that the manner in which a State provides for mechanisms to comply with this requirement whether by way

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  • draconian penalty of dismissing proceedings as against a particular defendant in circumstances which wholly defeat that claim of the plaintiff is not an order which is made with a view to punishing a party for his dilatoriness in proceeding with the action or for his failure to meet some artificial regime The order is made only when it is necessary to protect the legitimate interests of the party sued and in particular his constitutional right to a trial in accordance with fair procedures 62 In this case too the remedy of dismissing the plaintiffs claims would indeed be a draconian penalty It is of course true to say that there are many cases where delay of the length found here would be wholly inordinate and there will be some of those cases where it is inexcusable as well But the unique nature of this case and the unique difficulties of each plaintiff in pleading and proving what it says must also be considered To impose on a case of such complexity with the subject matter allegedly characterised by concealment and deceit the same twenty one day period for delivery of a Statement of Claim as applies to a perfectly simple running down action or any limit of that order would indeed be to impose an artificial regime and in my opinion an unjust one To these general observations must be added the fact that the authorities of the State have considered that the question of payments to Mr Lowry if any were made and the question of why they were made and the question of what if anything was done in consequence of their being made merited a public inquiry This inquiry was of such complexity that together with other topics it occupied in total more than fourteen years 63 In the absolutely unique circumstances of this case I consider that the plaintiffs were entitled to hear and consider the evidence which was led before the Tribunal prior to pleading their case It must be emphasised that at the start of the Tribunal s deliberations it was officially estimated that its work would take a year It is not the doing of the plaintiffs that that estimate was exceeded by so large a factor The State defendants have not argued this period of time was excessive they argue that the plaintiffs were not entitled to await the evidence developed at the tribunal at all 64 What were the plaintiffs to do except await the evidence at the Tribunal The plaintiff companies knew that there would be evidence about payments to Mr Lowry in the precise context which was relevant to their case heard by the Tribunal evidence produced in the main by compulsory processes unavailable to them To proceed before that evidence had been developed was to risk the dismissal of their actions for lack of evidence or for delay in furnishing particulars as in Primor If this had happened and the Tribunal had later reported as it actually did the law itself would in my view have been brought into disrepute 65 I find that the plaintiffs delay here is manifestly distinguishable from that in Primor and that the plaintiffs delay was excusable due to their unique situation and lack of other legal remedies Because the plaintiffs delay was excusable there are following Primor no grounds for dismissing the proceedings so it is not necessary to examine the balance of justice arguments advanced Comparisons and the interests of Justice 66 Counsel for the State cited a passage from my judgment in Kennedy v Director of Public Prosecutions Supreme Court unreported 7 June 2012 It was this A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such On the contrary it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of allowing a non binding opinion to be expressed on definite matters of urgent public importance 67 The passage relied on was a comment on a passage in the judgment of the learned trial judge in Kennedy in which he had stated that even if the delay in that case had been both inordinate and inexcusable he would still have been satisfied that the balance of justice would demand that these proceedings be allowed to take place This was because he said The case herein arises from allegations of corruption of public officials There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury The State has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials 68 I adhere to what I said in Kennedy and I am quite content to repeat it here It would be quite wrong to establish a Tribunal of Inquiry as a means of obtaining evidence for criminal proceedings or for civil proceedings But that is not what occurred in this case The Oireachtas and the Executive established a Tribunal of Inquiry because it considered that certain matters including payments to Mr Lowry required to be investigated as a definite matter of urgent public importance It was not suggested and would have been irrational to suggest that the Tribunal of Inquiry was established for the purpose of finding evidence for proceedings civil or criminal But once the Tribunal was established and in particular once it decided to investigate the competition for the second mobile telephone licence it became clear that the Tribunal was going to hear evidence which was of great relevance to the question of whether Mr Lowry had been bribed in connection with that competition and what if anything he did on foot of any payments This was of course the nub of the civil action 69 The position seems to me analogous to that which is exists where a plaintiff is taking an action for damages for personal injuries or a person s dependence on taking a fatal injuries action in respect of the consequences of a traffic accident or an industrial accident If there is reason to believe that the accident has caused death or serious injuries there may very well be a prosecution for alleged breaches of the Road Traffic Acts or the Health and Safety at Work Acts Such prosecutions are not instituted by the public authorities for the purpose of producing evidence for a civil action But it is extremely common for the Solicitor acting for the plaintiff in the civil proceedings to attend the criminal trial with a watching brief to see what happens and in particular to see what evidence is available that might assist him in the civil action There is nothing wrong in his doing so and it might indeed in certain circumstances be said that it would be negligent not to do so Even if there is no prosecution the fruit of a garda investigation into a traffic accident can be made available to a plaintiff in civil proceedings in the form of a garda abstract 70 In the examples I have given it is usual that a criminal prosecution especially a summary prosecution would be concluded in a relatively short period much shorter than it would normally take to have a trial of a civil action arising from the same facts The real difference between the examples I have given and the present case is that the Tribunal of Inquiry took an extraordinary period of time to complete its work This period of time was some thirteen or fourteen times longer than had originally been officially estimated But as I have already said the State did not argue on the hearing of this appeal that the Tribunal had taken too long or that the length of the Tribunal s proceedings disentitled the plaintiffs from relying on the evidence generated instead they made the point that the plaintiffs were not entitled to await the hearing of evidence at the Tribunal at all 71 It seems to me to follow from the foregoing that the passage cited from the judgment in Kennedy is simply irrelevant to the present circumstances Indeed Kennedy and Cosgrave were cases where the State itself is relying in criminal prosecutions on evidence which first emerged at a Tribunal of Inquiry There does not seem to be any reason why they should not do this 72 Kennedy and the associated case of Cosgrave v D P P Supreme Court unreported 26 April 2012 were cases where it was proposed to put elected officials such as Mr Cosgrave on trial for taking bribes and to try Mr Kennedy for allegedly providing the money to bribe them These proposed trials were totally dependent on the evidence of a self confessed guilty party Mr Frank Dunlop who was alleged to have passed on the bribes in particular contexts The offences alleged were said to have occurred between 1992 and 1998 Mr Dunlop had told the Flood Tribunal a close contemporary of the Moriarty Tribunal that he had made these payments by way of bribes This statement was made in October 2000 However Mr Cosgrave was not charged until October 2010 and Mr Kennedy was charged in the same month The criminal proceedings were thus initiated between twelve and eighteen years after the events complained of and the trials have yet to take place 73 The delay in charging these defendants related to the State s desire that Mr Dunlop would himself be prosecuted before being produced as a State witness and that he would give evidence in other State proceedings The delay which this involved which arose directly out of his evidence to the Flood Tribunal was not considered to preclude the proceedings against Messrs Cosgrave and Kennedy when these were eventually brought forward after a delay similar to but longer than that found in the present case 74 Although the State relied on the passage cited above from my dissenting judgment in Kennedy it showed no awareness at all of the general context of Kennedy and Cosgrave nor of the myriad other delay cases in which the State has been involved for upwards of a decade now roughly from JO C v D P P 2000 3 IR 478 onwards In those cases unlike the present one the State has typically been involved as the prosecutor or moving party and in that capacity it has consistently averred that trials of disputed allegations often of child sexual abuse can fairly be had after periods much longer than what is in question in this case and including periods in excess of forty years In the week in which this judgment was largely drafted the Court heard an appeal by the State against an order restraining prosecutions of allegations relating to a period between forty seven and thirty nine years previously 75 When asked about this apparent inconsistency of approach Counsel for the State responded a little impatiently that he could not be expected to stand over the conduct of every single delay case This is undoubtedly true and it would have been most unfair to ask him to do so But he was not of course asked to do so He was asked to address the existence of separate different and inconsistent State attitudes in a large category of cases over a period of many years where the State was the moving party by contrast with that adopted in the present case where the State is amongst the defendants 76 In the great bulk of the criminal cases in question there is little or more usually nothing at all in the way of documentary or forensic evidence with which the unaided memories of witnesses can be controlled or compared This case on the other hand is by comparison a very highly documented case It is not to be expected that persons who give or receive bribes will knowingly permit a documentary record of bribes described as such to come into being or to continue to exist But the processes leading to the evaluation of the tenders for the second mobile phone licence and the award of that licence are highly documented as the report of the Moriarty Tribunal demonstrates So it appears is the money trail which that Tribunal exposed 77 The fact is that the State has consistently argued over a period of many years that a trial of gravely serious allegations can fairly be had after periods which far exceed what is in question in this case The allegations in such cases will have appalling consequences for the person against whom they are made if they are found to be true usually including prolonged imprisonment financial ruin total destruction of reputation and familial and professional disintegration This record itself makes the State defendants protestations of injustice in this case ring hollow The allegations of prejudice are completely general in nature and the learned trial judge expressly held that there was no specific prejudice 78 In my view the State defendants in the present case have entirely failed to engage with the extensive jurisprudence on prejudice to fair litigation arising from delay in both civil and criminal cases and have simply ignored the State s own repeated contentions that in the great majority of cases at least a properly conducted trial can obviate any prejudice which might arise from lapse of time I do not consider that they have demonstrated any prejudice which would require the Court to strike out these proceedings in limine 79 It is most unsatisfactory that the State has in criminal proceedings asserted a right to proceed after periods of delay which dwarf those in question in this case while maintaining that the latter periods absolutely preclude a fair trial for the State defendants Counsel for the State did not seem conscious of any inconsistency in submitting as they have in this case that the periods of delay here are such that in themselves they demonstrate that there cannot be a fair trial of the allegations They say this on the assumption that the trial would take place about twenty years after the award of the second mobile telephone licence 80 The law officers of the State the Attorney General and the Director of the Public Prosecutions are of course independent in the discharge of their functions But if our jurisprudence is even remotely to approach coherence there must be some consistency of approach between the different arms of the State The present case is a complex one and requires to be proved to the civil standard of proof But it is also a case with a very great volume of relevant documentation that is it is a case which does not depend solely on the memories of witnesses Equally it is a case which is not afflicted by the unavailability of witnesses due to death or departure as Primor was I do not consider that the fact that a criminal case requires to be proved beyond reasonable doubt is capable of explaining the inconsistent approaches which this case reveals 81 It reflects no credit on our polity that the State has within the same very short period of time argued that the lapse of time between 1995 and the present wholly precludes the prospect of a fair trial of the allegations made against the State defendants But within a few weeks advancing that contention the State as noted above sought to overturn the High Court judgment where a trial of a criminal allegation had been prohibited on the basis of a lapse of time of between thirty nine and forty seven years 82 The question of alleged prejudicial delay is not at least directly relevant to the issue of excusability But it might be argued that delay which causes prejudice cannot be excusable The State have made no showing whatever of prejudice of any specific sort though in other cases the State Authorities insist that a citizen trying to prevent the State from proceeding against him after forty years must do just that 83 The State have in this case relied on a view of the effect of lapse of time on the potential for fair litigation which simply ignores the elaborate jurisprudence on the topic developed largely in response to the State s own policy of litigating certain cases many years sometimes decades after the cause of action has arisen The State defendants failure to refer to much less engage with this line of authority implies an unspoken suggestion that the State should be treated differently to the individual citizens as litigant I reject this as unstatable and inconsistent with the concept of legal equality 84 It is true that the litigation of very old issues civil or criminal is usually permitted on the basis that the subject matter is exceptional This however has not prevented such litigation becoming very common 85 The subject matter of this litigation is truly exceptional indeed unique There has never been anything like it If the plaintiffs have indeed been damnified by corruption at the highest levels of government and public administration it is clearly a requirement of basic commutative justice that they be compensated if they can make out their case In doing this the findings of the Moriarty tribunal are inadmissible But the evidence developed over nine years is not irrelevant and is publicly available to the plaintiffs as to any other citizen and to the State itself The State does not appear to have rejected or criticised that evidence 86 In my view a State which having set up a public Tribunal to investigate payments to Mr Lowry and what if anything he did in return and having seen that Tribunal decide to investigate the specific issue of the second mobile telephone licence cannot preclude a litigant from relying on the evidence the Tribunal had developed over many years The position might be different if the plaintiffs case were manifestly implausible but that has not been suggested in the present appeal In my view the integrity and reputation of the Nation as well as the rights of the plaintiffs require that this action be not terminated without a hearing as the State propose 87 I would allow the appeal and refuse the relief in both motions 2012 IESC 50 THE SUPREME COURT 215 216 07 and 213 07 Denham C J Hardiman J Fennelly J McKechnie J Clarke J Between COMCAST INTERNATIONAL HOLDINGS INC DECLAN GANLEY GANLEY INTERNATIONAL LIMITED AND GCI LIMITED Plaintiffs AND THE MINISTER FOR PUBLIC ENTERPRISE MICHAEL LOWRY ESAT TELECOMMUNICATIONS LIMTIED DENIS O BRIEN IRELAND AND THE ATTORNEY GENERAL Defendants and Between PERSONA DIGITAL TELEPHONY LIMITED AND SIGMA WIRELESS NETWORKS LIMITED Plaintiffs AND THE MINISTER FOR PUBLIC ENTERPRISE IRELAND AND THE ATTORNEY GENERAL Defendants JUDGMENT of Mr Justice Hardiman delivered the 17th day of October 2012 1 I would allow the appeal and refuse to grant the relief sought by the State in its Motions These Motions are to strike out the proceedings of each plaintiff on the ground of delay and on the ground of want of prosecution I would refuse these reliefs because I believe that in the circumstances of this case the delay of which the State defendants complain though very long is excusable 2 This being so on the authority of the decision of this Court in the leading case of Primor Plc v Stokes Kennedy Crowley 1996 2 IR 459 there is no basis for dismissing the case and accordingly no need to proceed further to consider the balance of justice as would have to be done if the Court found that the delay was both inordinate and inexcusable 3 Accordingly like the Chief Justice and Mr Justice McKechnie I believe that the delay is wholly excusable and dismiss the present application on that ground The bulk of the judgment which follows is devoted to an exposition of the circumstances which render the delay excusable in the present case 4 This case is absolutely unique without precedent or parallel in the ninety year history of the State It will be profoundly worrying indeed alarming in its implications for Irish public administration if the allegations made by the plaintiffs turn out to be true But the State defendants say that the action should be stopped here and now without the merits being decided on account of delay by the plaintiffs 5 It is important to understand the uniqueness of the case It is not merely unusual or odd It is not simply a case of a kind rarely met with It is unique there is no precedent at all I have never heard of anything like it in this jurisdiction The quality of uniqueness is central to my analysis of the law applicable on the present application Because the case is unique the decided cases merely supply the general principles to be applied rather than providing a case directly in point or a binding precedent Equally because it is unique the present case is unlikely itself to be of much value as a precedent I do not therefore intend to make general suggestions for the development of our jurisprudence on delay in this judgment This case does not represent a new category of case it is simply unique and sui generis 6 Certain facts are inescapable The Government and the Dáil established a public Tribunal of Inquiry into the payment of monies to two named people one of whom was Mr Michael Lowry the former Minister and current T D who is alleged in these proceedings to have acted corruptly in the award of a very valuable commercial permit the second mobile phone licence for Ireland This Tribunal some years after its establishment decided to investigate as a separate and specific topic whether or not there had been corruption in connection with the award of the licence The Tribunal did not consider the evidence against Mr Lowry implausible The plaintiffs now wish if they can to prove these allegations in Court But the State defendants the moving parties in this Motion wish to dismiss the proceedings without a hearing on the merits on grounds of delay and consequent alleged injustice 7 I wish to emphasise that the present case is not unique simply because it is based on a claim that a Government Minister acted corruptly that a public administrative process designed to be impermeable to politics was allegedly corrupted The principal relevant unique factor is that Dáil Eireann and the Taoiseach decided to set up a Tribunal of Inquiry which itself decided to investigate the very matter which is at the heart of these proceedings the award of the second mobile telephone licence Its inquiry was estimated by the sole member of the Tribunal to be capable of concluding in a year in fact it took thirteen times that long But it produced evidence of a money trail which if capable of being established in legal proceedings would be extremely valuable to the plaintiffs which evidence I am satisfied for reasons given below would not have been available to them by any other means 8 This judgment relates to motions by the State defendants to strike out the plaintiffs case for want of prosecution and delay in two separate proceedings those named in the title hereof I have concluded that it is possible to give a single judgment on these two motions For convenience and to avoid any element of unnecessary repetition I have set out the history and the pleadings in the Comcast case only But the essential issues are the same in each of the cases A significant difference between the two sets of proceedings is that the second set those in which Persona the lead plaintiff is against the State defendants only in the other proceedings those brought by Comcast the plaintiffs have elected to sue Mr Michael Lowry T D and Mr Denis O Brien personally as well as the State defendants No notice claiming indemnity or contribution has been served by any defendant Another notable distinction between the cases is that the Persona plaintiffs received correspondence from the State requesting delivery of a Statement of Claim which they say amounted to an acquiescence in the delay up to that time In the view which I take of the issues raised by the motions it is not necessary to consider this individual feature Pleadings 9 On the 10th October 2001 the Comcast plaintiffs issued a plenary summons against the defendants in the following form The plaintiffs claim is for 1 A declaration that the decision announced on the 25th October 1995 to award the second GSM Mobile Telephony Licence to Esat Digifone Ltd is unlawful null and void and to no effect 2 Damages for a Breach of statutory duty b Misfeasance in public office c Breach of or procuring the breach of the Prevention of Corruption Act 1906 d Fraud e Deceit f Breach of duty g Breach of contract Further or other relief as to this honourable court it seems fit to grant 3 Interest pursuant to statute 4 The costs of these proceedings 10 The wrongdoing alleged against various defendants is set out in the Statement of Claim delivered the 3rd June 2005 in the following way The Plaintiffs are unable to fully particularise the extent of the wrongdoing of the Minister pending the conclusion of the investigations currently the subject of investigation by the Tribunal of Inquiry into Payments to Mr Charles Haughey and Mr Michael Lowry the Moriarty Tribunal However on the basis of the information disclosed at the public hearings of the Moriarty Tribunal to date it is clear that the Minister engaged in the following forms of wrongdoing a The Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders i On August 16th 1995 while the bids were being evaluated the Minister met with the chairman of one of the bidders the Persona Consortium and discussed that consortium s bid ii On September 15th 1995 the Minister met with Mr Tony O Reilly a representative of another bidder the AT T consortium and made reference to that consortium s bid iii In September 1995 the Minister met with Denis O Brien and suggested that IIU Nominees Limited IIU should become involved in the Esat consortium b The Minister his servants or agents disclosed or caused to be disclosed confidential information in relation to the bid process to Esat i Esat was informed of the fact that the competition structure was to be changed from a straight auction to beauty contest and of the extension of the bidding process prior to any such information being disclosed to the other bidders ii The Minister his servants or agents informed Esat of the contents of discussions with the European Commission in relation to the imposition of a cap on the licence fee Access to this information placed Esat at a significant competitive advantage iii The Minister his servants or agents disclosed or caused to be disclosed certain of the weightings to be applied to the evaluation of bids c The Minister modified the terms of and unlawfully interfered with the tender process to favour Esat i The Minister his servants or agents intervened to ensure the imposition of the cap of 15m on the licence fee ii The Minister amended the timing of key milestones in the tender process including the final date by which tender bids were to be lodged The original closing date for receipt of submissions of tenders was June 23rd 1995 This date was extended to August 4th 1995 The purpose and effect of the extension of this deadline was to favour Esat iii The evaluation methodology was modified with the aim and effect of favouring Esat iv The Minister intervened in the substantive evaluation process to ensure that the choice of successful bid was determined other than by reference to the recommendation of the project group v The Minister failed to conduct any or any appropriate assessment to satisfy himself as to the financial and or technical capacity of Esat prior to the award of the licence vi Notwithstanding the Minister s knowledge that the Esat bid lacked reasonable financial capability the Minister nonetheless awarded the licence to Esat vii The Minister expedited the selection and announcement of the successful bid and in so doing failed to have any or any adequate regard to the final evaluation report prepared by the external consultants AMI appointed to advise on the evaluation of bids which report did not identify a definitive winner The Minister made a public announcement on October 25th 1995 to the effect that the competition was won by Esat prior to the presentation of the final evaluation report to the Department and prior to the consideration of that report by the project group viii The Minister unlawfully procured or facilitated the entry of IIU into the Esat consortium after the submission by Esat of its bid on August 4th 1995 In so permitting a post submission amendment to the bid he breached the rules of the tender process ix The Minister was aware of the involvement of IIU in the bid prior to the award of the licence to Esat Nonetheless he failed to take any steps to assess the financial capacity of the Esat consortium to the detriment of the other bidders No assessment of the financial standing of IIU was conducted by the Minister his servants or agents until May 1996 prior to the signing of the licence agreement by the Minister x The Minister abused his position prior to the award of licence to Esat by intervening with the Electricity Supply Board ESB to ensure that Esat would be permitted to erect masts on ESB pylons d The Minister accepted improper payments made by Denis O Brien and or Esat which payments were made to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat i Subsequent to the announcement of the decision to award the licence to Esat the sum of US 50 000 was pad in December 1995 by Esat to an offshore account operated by David Austin a senior Fine Gael fundraiser The sum of 50 000 was paid by David Austin to Fine Gael on May 6th 1997 The said sum was repaid on March 2nd 1998 Fine Gael indicated that it could not accept the payment of the sum which Mr O Brien claimed to have been a donation from Esat The Plaintiffs contend that the payment of US 50 000 was intended by Denis O Brien to influence the outcome of the tender process and or to ensure that Esat was awarded the licence and or to reward the Minister for having intervened to ensure the warding of the licence to Esat ii The Minister accepted the sum of 100 000 paid by Denis O Brien in early mid 1996 The aim and effect of this payment was to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat iii In July 1996 Denis O Brien arranged for the payment of 150 000 to David Austin who transferred the sum of 147 000 to the Minister The aim and effect of the transfer of funds from Denis O Brien to David Austin and subsequently to the Minister was to influence the outcome of the tender process and or to reward the Minster for having intervened to ensure the awarding of the licence to Esat iv Denis O Brien financed the purchase of a property in Mansfield England acquired by the Minister The aim and effect of the provision of finance for the acquisition of the Mansfield property was to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat And the Plaintiffs reserve the right to deliver further particulars hereof at any time before the trial of this action 16 Further the Third and Fourth Named Defendants owed a duty to the Plaintiffs and each of them not to engage in wrongful actions designed to interfere with the integrity of the tender process and to ensure that the licence was in breach of the rule governing the tender process awarded to Esat PARTICULARS OF UNLAWFUL ACTIONS ENGAGED IN BY THE THIRD AND FOURTH NAMED DEFENDANTS The Third and or Fourth Named Defendants caused the payments referred to at paragraph 15 d above to be made to the Minister in breach of the rules of the tender process and of the provisions of the Prevention of Corruption Act 1906 as amended The purpose and effect of these corrupt payments was to ensure the award of the licence to Esat and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat The Plaintiffs reserve the right to deliver further particulars hereof at any time before the trial of this action The defendants 11 The first named defendant is the Minister for Public Enterprise which is a corporation sole with perpetual succession This phrase connotes the office itself and not the individual holder of the office at the present time or any previous holder The office is now denominated the Minister for Enterprise Trade and Employment 12 The second named defendant Mr Michael Lowry is a Dáil Deputy and a businessman He was Minister for Public Enterprise at the time of certain events set out below in connection with the second GSM Mobile Telephone Licence He resigned as Minister in circumstances of controversy unconnected with this action It is right to add that he has been re elected to Dáil Eireann at every subsequent election and clearly enjoys the confidence of the voters of North Tipperary 13 The third named defendant is a limited liability company incorporated in Ireland and was at all relevant times the holding company for Esat Telecom Holdings Ltd 14 The fourth named defendant Mr Denis O Brien is one of the best known and wealthiest businessmen in the State and a major figure even by international standards At all times relevant to this application he was the principal share holder in a company called Communicorp Group Limited Through that vehicle he held an interest of between 37 5 and 40 in Esat Digifone a consortium formed for the purpose of submitting a bid for the mobile phone licence mentioned above This consortium consisted of Esat Telecom Holdings Ltd Telenor Invest AS and IIU Nominees Ltd 15 Accordingly it can be seen that the plaintiffs in the present proceedings make allegations of fraud misfeasance deceit and other wrongs against a government ministry the State itself the Attorney General a former Minister and current member of Dáil Eireann a Company and an immensely wealthy and prominent businessman It is most important in the interest of justice to emphasise what to most readers will be known already the allegations of actual corruption are made against Mr O Brien and Mr Lowry T D the liability of the other parties for their alleged actions is said to be vicarious or representative 16 Thus the State is said to be liable for the wrongful acts of the former Minister and the Attorney General is sued in a representative capacity 17 None of these allegations has as yet been proved in any legal forum The plaintiffs intend to attempt to do so in these proceedings and they have they say gathered a great deal of information to this end from the evidence heard in public at the Moriarty Tribunal The State defendants however say that the plaintiffs have delayed too long while doing this and that the proceedings should

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  • becomes satisfied that a s 44 application should be made and consequently there was no need for the respondent even to consider the application for an adjournment of at least 16 20 hours or of any of the concerns held by Ms O C mainly the possibility of ordinary nursing work working abroad and the position where other expecting mothers were insistent on engaging her for a home birth iii Ordering her to pay the costs regardless of what the outcome might be in the current F T P Inquiry into identical allegations and any appeal from its determination iv Rejecting an application that there should be liberty to apply Submissions 16 Written submissions were filed on behalf of both parties and oral submissions were made to the Court Motion 17 The appellant brought a notice of motion to the Court for leave to adduce further evidence at the hearing of this appeal The Court allowed the evidence in de bene esse without making a decision on its relevance Statute 18 Section 44 of the Act of 1985 provides 1 Whenever the Board is satisfied that it is in the public interest so to do the Board may apply to the High Court for an order in relation to any person registered in the register that during the period specified in the order registration of that person s name in the register shall not have effect 2 An application under this section may be made in a summary manner and shall be heard otherwise than in public 3 The High Court may make in any application under this section such interim or interlocutory order if any as it considers appropriate It is this section which is the basis for the respondent s action and which is in issue in this appeal The order of the High Court on the 9th June 2010 was that the appellant be suspended from the Register pending the determination of the inquiry of the fitness to practise committee pursuant to s 44 of the Act of 1985 Decision 19 In the High Court as is apparent from the judgment the President held that no issue arose on the propriety of the matter proceeding in a summary manner In this Court counsel for the appellant argued that he had not abandoned the interlocutory position He argued that the High Court could make an interim or an interlocutory order pursuant to s 44 3 of the Act of 1985 and that is what he sought i e pending the hearing of the inquiry He argued that the order was to suspend the registration of the appellant pending the inquiry that it was not an interlocutory order but a final order under s 44 He argued that there should also have been a proportionate order i e an order only suspending the registration of the appellant from practising as a domiciliary midwife but not as a general nurse He argued that if such an order had been made under s 44 3 of the Act of 1985 it would have been proportionate 20 This aspect of the appellant s situation this new case arose after the appellant had withdrawn her undertaking not to practise The order of the President of the High Court was of the same breadth as her original undertaking There was little or no material in her affidavit as to her personal circumstances in the High Court such as was moved before this Court in the motion to adduce further evidence Counsel for the appellant argued before this Court that there was insufficient material to warrant such an extensive order in the High Court yet the proceedings in the High Court were the consequence of the appellant revoking her undertaking not to practise It is a rather circular situation 21 On the issue of the jurisdiction of the High Court I would affirm the High Court order This was a special summons seeking an order pursuant to s 44 of the Act of 1985 This invoked the jurisdiction of the High Court The summons would have allowed orders under s 44 1 and or s 44 2 and or s 44 3 It was clear from the papers before the High Court that the respondent was seeking a full order pending the determination of the Inquiry of the Fitness to Practise Committee Consequently I would dismiss the appeal on this ground Audi Alteram Partem 22 Counsel for the appellant also submitted an argument of audi alteram partem This arose in the following context On the 22nd May 2008 on her being notified of the respondent s intent to make an application under s 44 of the Act of 1985 the appellant voluntarily agreed not to practise her profession Her counsel submitted that this was provided that the fitness to practise inquiry was conducted expeditiously On the 5th May 2009 the inquiry commenced On the 8th May 2009 the appellant raised objections of objective bias Her objections were rejected and on the 6th July 2009 she commenced a judicial review On the 13th October 2009 the High Court Hedigan J rejected her claim and her appeal to this Court in the matter has been rejected On the 19th February 2010 the appellant advised the respondent that she was no longer bound by the undertaking not to practise which she had given previously On the 24th February 2010 the respondent advised her that it would meet on the 2nd March 2010 at 3 30 p m to consider applying for a s 44 order and invited the appellant to attend On the 1st March 2010 the respondent sent the appellant the documentation it was intending to consider at the meeting The appellant s solicitor requested an adjournment On the 2nd March 2010 the respondent met in the appellant s absence and decided to seek a s 44 order This decision was taken in the circumstances that the appellant had withdrawn her undertaking not to practise nursing and indicated she intended returning to practise on the 1st March 2010 The appellant s solicitors had represented her in 2008 when the same issues arose 23 Section 44 of the Act of 1985 provides a mechanism for the respondent in the public interest to apply to the High Court to suspend the registration of a nurse Clearly there are a wide range of circumstances which may arise in such situations There may be acute emergencies and on the other hand cases where time is not so important Thus there is no obligation on the respondent to give prior notification before s 44 proceedings are commenced I would agree with and adopt the words of Geoghegan J in Ó C v An Bord Altranais 2000 4 IR 54 where he stated at p 133 The position in relation to a decision by the body to bring Court proceedings under s 44 of the Nurses Act 1985 was to be viewed quite differently in my view There would never be an obligation to give prior notification before s 44 proceedings were commenced Section 44 of the Act of 1985 has been enacted with a view to preventing immediate danger to the public That is the paramount consideration The natural justice rights of Ms Ó C must be balanced against the public safety factors and the terms of the section itself would seem to me to achieve that balance with the result that it is not appropriate to superimpose some natural justice rights prior to the institution of proceedings Consequently I would dismiss the claim that there was a breach of audi alteram partem Notification 24 What is raised in this appeal in effect is whether the notification to the appellant of the proposed s 44 procedure was sufficient This issue arose in circumstances where the appellant has said on affidavit that she wished to provoke an application to court In all the circumstances where she had been notified on the 24th February 2010 and where she was apparently proceeding to revoke her undertaking there was good reason for the respondent to proceed on the 2nd March 2010 and in the circumstances the notification was reasonable Of course the appellant would have a full opportunity to respond in court Thus I would dismiss the appeal on this ground also Liberty to apply 25 The appellant also submitted that the High Court should have granted liberty to apply It was submitted that the concern of the respondent was that the appellant not practise domiciliary midwifery The order it was submitted should have been proportionate that s 44 1 is draconian and so the principles of proportionality should have been applied It was submitted that it was an error of law of the President of the High Court to refuse to give liberty to apply 26 There is some doubt as to the extent if any of the submissions before the High Court seeking a more limited form of order or to grant liberty to apply However I have considered the matters raised by the appellant Conclusion 27 In all the circumstances on the facts before the High Court I am satisfied that no case has been made out that there was any error made by the High Court 28 For the reasons given I would dismiss the appeal THE SUPREME COURT Appeal No 202 2010 Denham C J Murray J Hardiman J Fennelly J Macken J In the matter of Section 44 of the Nurses Act 1985 Between An Bord Altranais Applicant Respondent and A O C Respondent Appellant Judgment delivered on the 21st day of December 2011 by Denham C J 1 This is an appeal by A O C the respondent appellant referred to as the appellant from the order of the High Court Kearns P made on the 9th June 2010 directing that she be suspended from the Register pending the determination of the inquiry of the fitness to practice committee into the grounds of professional misconduct alleged against the appellant under s 44 of the Nurses Act 1985 2 An Bord Altranais the applicant respondent referred to as the respondent brought a special summons directed to the appellant to require the appellant to attend before the President of the High Court The special endorsement of claim of the special summons recited a number of matters including the following the appellant is a person whose name is entered on the register maintained by the respondent pursuant to the Nurses Act 1985 referred to as the Act of 1985 At a meeting of the respondent on the 2nd March 2010 the respondent decided having satisfied itself that it was in the public interest so to do to apply to the High Court pursuant to s 44 of the Act of 1985 for an order that for such time as the High Court may direct that the registration of the appellant s name on the register shall not have effect 3 On the 9th June 2010 the said special summons came on for hearing before the High Court The High Court had before it a number of affidavits The High Court Order 4 The High Court ordered that the registration of the name of the appellant in the General Nurse Division and in the Midwives Division of the Register maintained by the respondent shall not have effect pending the Inquiry of the Fitness to Practise Committee of the respondent into the fitness to practise of the appellant on the grounds of alleged professional misconduct 5 The High Court ordered that the appellant be restrained from engaging in the practice of nursing and the practice of midwifery pending the determination of the Fitness to Practise Committee of the respondent into the fitness to practise of the appellant on the grounds of alleged professional misconduct 6 The order of the High Court made provision that notice of the orders be given to the Minister for Health and Children the Chief Executive officer of the Health Service Executive any employer or prospective employer or registration body enquiring as to the registration status of the appellant and any prospective client of the appellant enquiring as to the registration status of the appellant Further the respondent was given liberty to publish a statement on the on line register that until further notice the registration of the appellant s name in the General Nurse Division and in the Midwives Division of the Register shall not have effect and is suspended under s 44 of the Act of 1985 The High Court Judgment 7 In counsel s note of the judgment of the President of the High Court of the 9th June 2010 it is clear that the President commenced his judgment by reciting that this was an application under s 44 of the Act of 1985 and reciting the terms of the section The President then stated that although the written submissions filed by the appellant addressed the format of the proceedings as the matter unfolded that was not part of or the basis of the legal argument No issue arises as to the propriety of the application being brought in a summary manner 8 The President of the High Court recited that Dr Forde Senior Counsel for the appellant raised a jurisdictional issue He argued that s 44 of the Act of 1985 implies some type of meaningful participation by the party against whom such an order is sought by the respondent when it is considering whether to bring such an application The President stated that the second leg of counsel s submission concerned the threshold to be reached counsel had submitted that there is a higher duty than in other Acts where the requirement is that a person must be of the opinion that an application should be made 9 The President dealt with the second point first He stated The second point is a very easy matter to deal with on the facts deposed to on which no issue was really joined There was a long labour associated with the stillbirth of a child which gave rise to an inquiry and the details need not be set out The child was born on 22 April 2007 to Ms Jordan The affidavit of An Bord Altranais sets out this in detail and in particular in the affidavit of the deponent Ann Carrigy who sets out that the facts are such that give rise to a concern on the Board s part that an application under section 44 was necessary I am satisfied that the threshold is met The Board formed the view and it was satisfied that it was in the public interest to apply under section 44 10 The President then referred to the earlier history of the case including undertakings not to practice given by the appellant in 2008 and 2009 and how four days into the fitness to practise inquiry a decision was made by the appellant to withdraw from the inquiry because of some perceived bias 11 An application for judicial review on the issue of perceived bias was brought before the High Court It was rejected by Hedigan J The President of the High Court then recited that the matter was on appeal to this Court This Court has given its judgment in that matter and rejected the appeal by the appellant 12 The President of the High Court referred to the issue of delay and stated it should be laid at the door of the appellant 13 The President addressed the submissions alleging a right of the appellant to be involved in the initial considerations of the respondent under s 44 of the Act of 1985 The President held I do not believe that the Court is required to be satisfied that there is an enlarged right to participate in the deliberations of An Bord Altranais in this early stage of the proceedings when the decision is made to initiate the process This is clear from a recent decision which I gave in Al Sukhun v The Dental Council on the 14th May 2010 where I cited a passage from the earlier judgment in the Ó C case where Mr Justice Geoghegan at page 133 dealt specifically with the decision to bring court proceedings and stressed that there would never be an obligation to give prior notification before s 44 proceedings were commenced Section 44 of the Act of 1985 has been enacted with a view to preventing immediate danger to the public That is the paramount consideration Dr Forde in his usual ingenious way is endeavouring to reverse the cart backwards into s 44 to set a threshold in relation to the Board being satisfied I am satisfied that the section means there is an entitlement to natural justice rights but that those rights of the appellant are limited to a right of notification of the meeting and to be furnished with the relevant information and to make representations in that limited context There is a complaint that the documents were furnished late in the day and there is no note of a consideration for the application for adjournment I have to take into account a number of factors and have considered them First I am satisfied that Nurse O C was notified in a timely fashion It is a significant logistical exercise to convene a board of this nature and it is totally unacceptable that her solicitor simply said that she had prior commitments There is nothing contained in the affidavit which gives sufficient reason for her non attendance Even if I had any reservations on this there is the extra background in that Nurse O C herself gave an undertaking not to practise rather than be subject to a s 44 application The subject of the undertaking and the Inquiry is now the same No proper basis for any adjournment was demonstrated and the appellant and her advisors were given proper notice of the board meeting 14 The

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