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  • right of reasonable access to his legal advisors and that refusal of a request to give such reasonable access would render his detention illegal Of course in this context the word reasonable must be construed having regard to all the circumstances of each individual case and in particular as to the time at which access is requested and the availability of the legal adviser or advisers sought Factual aspects 19 In the present case as may be seen from the Case Stated the learned trial judge held a That the sole reason for refusing the request for a solicitor when it was made immediately after a statutory requirement had been made of the defendant was the garda s mistaken belief that the whole process would be aborted if the procedure were delayed to allow consultation with a solicitor because she would not be legally entitled to make another request of the accused if she broke the intoxilyser s machine s cycle in order to allow him to consult with a solicitor This is admitted to be an error but it is undoubtedly the source of all the difficulty which has arisen in this case It must also be recorded that it was admitted to be an honest error and not one invoked for the purpose of maliciously depriving the defendant of the right of access to a solicitor In other words it was no more but also no less than an error made by a member of An Garda Síochána who had been specially trained in the use of this machine and the procedures relevant to it It will be noted that the commencement of the intoxilyser procedures in Blanchardstown Garda Station had themselves been delayed so as to permit this specially trained garda to arrive from some other location The statutory provisions are clearly not beyond misinterpretation even after specific training b The learned District Judge also held that there was no reason at law why Sergeant Synnott could not at least have made a phone call to his solicitor s office after the accused had made the request to speak to a solicitor and that it was understandable that someone would ask to see a solicitor upon being asked to carry out a particular procedure in a garda station The learned District Judge also held that the custody regulations and the associated Notice of Rights state that a person is entitled to consult with a solicitor at any time while in custody Emphasis added The issues 20 That factual matrix set out above might conceivably give rise to a considerable number of legal issues The scope of such issues was however restricted by reason of the fact that the prosecution confirmed that it was not seeking in this case to overturn the exclusionary rule consequent upon a deliberate and conscious denial of constitutional rights as found in the judgments of this Court in D P P v Kenny 1990 2 IR 110 or the position in relation to the legality of a person s detention when he is deprived of the right of reasonable access to a solicitor as found in D P P v Buck 2002 2 IR 268 which judgment is quoted from above Instead the prosecution emphasised the question of whether or not the refusal of a solicitor by Sergeant Synnott was reasonable even if mistaken This was the prosecution s first position In the course of argument however Ms Sunniva McDonagh S C for the prosecution submitted that though Sergeant Synnott was in fact mistaken it would have been reasonable for her to refuse Mr McCrea s request for a solicitor at the time when it was made even if she knew she would not be debarred from making a second request after an attempt had been made to contact his solicitor and if the attempt was successful advice had been taken It will be observed that this second position goes much further than the first 21 These submissions might perhaps raise a considerable field for legal argument if they were to be approached in the abstract There is no doubt that the right of access to a solicitor by a detained person cannot in all circumstances be a right to access instanter as Ms McDonagh put it Indeed a solicitor will not generally be instantly available Neither the solicitor nominated by a person in custody nor any solicitor may be available at times such as 2am in the morning Plainly this cannot indefinitely hold up procedures in the garda station as was made perfectly clear by O Higgins C J in D P P v Madden 1977 IR 336 It will be recalled that in his judgment in that case the former Chief Justice emphasised the need to construe the word reasonable having regard to all the circumstances of each individual case and in particular to the time at which access is requested and the availability of the legal adviser or advisers sought 22 In the present case however it appears to me that a salient feature which must be considered in addressing the reasonableness of Mr McCrea s demand and of its refusal on the sole ground offered is what the gardaí themselves told Mr McCrea 23 Although the right to consult a solicitor in certain circumstances is deprived from principles contained in the Constitution as the Case Law of this Court over the years has made clear in this case the defendant was informed by the gardaí not only of his right to consult a solicitor when he arrived in the Garda Station but of his right to do so at any time while he was in custody there on the basis of a statutory regulation It is not contested by the State that there was a breach of the requirements of the statutory regulation but it was contended that the reason for non compliance given by the garda member concerned was a reasonable one even if erroneous as explained in the Caste Stated In these circumstances it is not necessary to consider the ambit of the constitutional right of access to a solicitor and in particular whether it applies to a person who has been arrested solely for the purpose of taking a breath test under the Road Traffic Act This case can be determined having regard to its own particular facts and the failure to observe the regulatory procedure 24 In the absence of access to a solicitor the gardaí themselves were the only source of legal advice available to the Notice Party They were obliged to advise him about access to a lawyer and this advice was given in unambiguous terms It was that he was entitled to consult his solicitor at any time during his detention in the garda station and that if he did not avail of the opportunity for access to a solicitor when it was first offered that fact would not preclude him from exercising it later This statement of his entitlements was not qualified in any way The learned District Judge thought it not unreasonable that a person confronted with a demand expressed in statutory that is in technical legal terms should then seek a solicitor 25 There is no need in my opinion for this Court to scrutinise that finding or any other finding of the learned District Judge other than to enquire whether these findings were such as were open to her on the evidence That is the question of whether her findings were findings which this Court would itself make on the same evidence simply does not arise Equally it must be borne in mind that this is a Case Stated by way of Appeal and not a consultative Case Stated In the latter species of Case Stated the learned District Judge is entitled to pose a particular question for the High Court to answer Under the Appellate procedure the statutory origins of which are set out on the title page of this judgment a party in this case the prosecution is entitled to apply to the District Judge to state and sign a case setting forth the facts and grounds of such determination for the opinion thereon of the High Court The nature of this jurisdiction is not affected by the terms of s 51 of the Act of 1961 26 Accordingly it seems to me sufficient to say that having considered the grounds of the learned District Judge s decision which are set out earlier in this judgment the Court need only say that it was open to the learned District Judge on the specific facts she found in this case to dismiss the charge She was entitled to find that Mr McCrea was reasonably entitled to rely literally on what the gardaí told him as to when he could take legal advice from a solicitor entitled to find that a solicitor s advice would have been of benefit to him and entitled to find that he had not had reasonable access to it 27 In conformity with the long standing practice of the Superior Courts it is unnecessary and would be wrong to speculate what the result might have been had the facts been slightly different in one way or another and we do not do so 2010 IESC 60 THE SUPREME COURT 82 09 Murray C J Hardiman J Fennelly J Macken J Finnegan J IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS SUPPLEMENTAL PROVISIONS ACT 1961 Between THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA BRIAN LAVELLE Prosecutor Appellant and PAUL McCREA Defendant Respondent JUDGMENT of Mr Justice Hardiman delivered the 9th day of December 2010 1 This is an appeal by the prosecutor the Director of Public Prosecutions from the judgment and order of the High Court Edwards J delivered on the 28th January 2009 on a Case Stated by way of appeal from the judgment of the District Court District Judge Watkin whereby she dismissed the charge brought against the defendant Mr McCrea Background 2 The charge against Mr McCrea which was dismissed on the 23rd January 2008 was as follows On the 09 06 2007 at Blanchardstown Garda Station in the said District Court area of Dublin Metropolitan District being a person arrested under s 49 8 of the Road Traffic Act 1961 having been required by Garda Gillian Synnott a member of An Garda Síochána at Blanchardstown Garda Station pursuant to s 13 1 A of the Road Traffic Act 1994 to provide two specimens of your breath did REFUSE to comply forthwith with the said requirement Contrary to s 13 2 of the Road Traffic Act 1994 as amended by s 23 of the Road Traffic Act 2002 3 At the trial at the District Court both parties were professionally represented The nub of the case 4 As appears from the charge set out above the substance of the charge against the defendant was that he refused forthwith to provide breath specimens in the garda station These specimens which are inputted into a special analysis machine are known as evidential breath specimens and may be accepted by a court as evidence of driving with excess alcohol It was essential to the making of a valid demand to produce these specimens that the defendant the person on whom the demand was made should at the time the demand was made have been a person who had been arrested pursuant to the relevant power and brought to a garda station There are other requirements as well but except as set out below they are not relevant here 5 In the case as it developed before District Judge Watkin there was evidence of an arrest and evidence that the defendant was brought in custody to the garda station This happened at 2 18am on the 9th June 2007 According to the Case Stated by the learned District Judge what happened next was as follows At 2 21am the accused was given his Notice of Rights and Form C72 was read over and explained to him by Garda William Murray attached to Blanchardstown Garda Station The accused refused to sign for his Notice of Rights Garda Lavelle testified that the accused had not requested to speak to a solicitor at this stage despite the fact that it was put to the garda that the evidence of the accused would be that he had made such a request at that stage 6 It appears that there was then some delay because there was no garda in the station trained to operate the intoxilyser machine Eventually a Garda Synnott who had been so trained arrived and was introduced to the accused at 2 50am According to the Case Stated She noted the temperature and humidity levels in the intoxilyser room were within required perimeters Garda Synnott entered her details into the intoxilyser machine and made a requirement of the accused under s 13 1 A of the Road Traffic Act 1994 at 2 54am Garda Synnott explained to the accused the penalties for refusing to give a sample of his breath as required under s 13 1 A Garda Synnott stated that the accused replied that he wanted to speak to a solicitor Garda Synnott stated that she informed the accused that he could speak to a solicitor as soon as he had complied with her requirement Garda Synnott testified that she reminded the accused that he was obliged by law to provide a sample of his breath and that he would be able to talk to his solicitor afterwards Garda Synnott testified that she explained to the accused in ordinary language that he was required to provide a breath sample under the law and that his solicitor would tell him the same thing Under cross examination and in response to questions from me Garda Synnott explained that the reason she did not accede to the request of the accused for access to a solicitor was that she believed she could only make one request pursuant to s 13 1 A of the Road Traffic Act 1994 and that if she aborted the process midway through in order to provide the accused with an opportunity to speak to his solicitor she would be precluded from making any further request under s 13 1 A 7 The Case Stated then recorded that the defendant s lawyer sought a direction on the basis that the accused had been denied a right of reasonable access to a solicitor and that this had in consequences produced the evidence relied on by the State in prosecuting the case 8 At para 17 of the Case Stated the learned District Judge recorded a concession by the representative of the State that Garda Synnott had been in error in the view she had acted on and that there was nothing to suggest that a garda could only make a request of a suspect on one occasion Both in the District Court and on the hearing of this appeal it was the position of the State and of the respondent that Garda Synnott had indeed been in error in this regard and that it would have been open to her to make a further requirement for a specimen of breath after the interval required to permit the defendant to consult presumably telephonically with his solicitor District Court decision 9 The learned trial judge recorded her decision at paras 20 24 of the Case Stated as follows 20 I found that a request to provide a breath sample had been made of the accused and that he had made an immediate request to consult a solicitor I found that Sgt Synnott declined this request due to a mistaken belief that she would not be legally entitled to make another request of the accused if she broke the intoxilyser machine s cycle in order to allow him to consult with a solicitor 21 I distinguished the Walsh v Ó Buachalla decision on the basis that it concerned a charge brought under S 49 of the Road Traffic Act 1964 as amended rather than a charge brought under S 13 of the Road Traffic Act 1994 as amended 22 I noted that the Custody Regulations and the associated Notice of Rights state that a person is entitled to consult with a solicitor at any time while in custody I said it was understandable that someone would ask to see a solicitor upon being asked to carry out a particular procedure in a garda station I said that the aggressive behaviour on the part of the accused occurred after the refusal of access to a solicitor and possibly as a direct result of same refusal I said there was no reason at law why Sgt Synnott could not at least have made a phone call to solicitor s office after the accused made the request to speak to a solicitor 23 I pointed out that if the accused had been allowed access to a solicitor the solicitor would amongst other advices have advised him to provide a breath sample The accused would have been advised that depending on the reading obtained by the intoxilyser machine he may not be charged at all or be the subject of a one two or three year ban as opposed to a four year ban should he fail or refuse to provide a sample I noted that this was a level of information that Sgt Synnott was under no obligation to provide and did not provide in the instant case 24 I dismissed the charge against the accused on the basis that he had been denied a right of reasonable access to a solicitor and that the refusal by the accused may have occurred as a consequence of the breach of that right What the Gardaí told the defendant 10 As found by the learned District Judge a

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  • of bank mandates which the law or prudent business practice or both require to be carried out by directors It follows from the judge s findings that the respondent while auditor of the company was also a director of the company That is a breach of a statutory obligation imposed by s 187 2 a of the Act of 1990 and one of the few obligations imposed upon an auditor by the Act of 1963 It follows that this matter in itself satisfied section 160 2 b It is also an unavoidable conclusion from the findings of the trial judge that the respondent was in breach of his duty as an auditor for each of the years during which he was the director of the company Again this is not merely a case of errors however serious in the carrying out of a genuine audit There is in truth no objective evidence that any audits were carried out since the respondent claims to have handed all his audit working papers to Mr Traynor But if any audit was carried out it was perfunctory at best Perhaps the most telling finding is the judge s observation made in excusing the respondent from any knowledge of the illegality which was taking place in relation to Kentford that the respondent was while director and auditor unaware of the nature of the company s business activity As the trial judge found the respondent did not carry out his basic duty as an auditor There was the appearance of compliance with the statutory formalities there was no performance of the substance This was a plain and complete breach of s 190 6 of the Act of 1990 Accordingly this also satisfied section 160 2 b The trial judge found that the respondent s resignation as director did not occur on the 14th March 1989 as he maintained but rather was backdated to that date It is not stated in the judgment but it is an unavoidable conclusion that the purpose of that backdating was to seek to conceal the breach by the respondent of his obligation under s 187 2 a of the Act of 1990 as an auditor not to be a director of the company I do not think that the conduct can be excused by a general reference to a culture of backdating documentation in order to correct the paper record The backdating of the respondent s resignation did not correct the paper record it created one and one which it must be said was false and intentionally so The respondent maintained throughout the High Court hearing that he had in fact resigned as of March 1989 and furthermore had procured correspondence from Mr Field Corbett and his daughter both then resident in the Isle of Man and which purported to confirm his resignation as of March 1989 The trial judge rightly placed no faith in that correspondence The judge would have been entitled to consider the entirety of the respondent s behaviour in this regard as conduct which fell below the standards of behaviour required of a director and auditor and thus justifying a finding under section 160 2 d Significant though the foregoing matters were in themselves and in the picture of activity or more accurately deliberate non activity which they revealed there is no doubt in my mind that the purported letter of the 23rd January 1990 is the most serious matter in this case and was perhaps the catalyst in leading the Director of Corporate Enforcement to bring this application It bears repeating that this was the only Kentford document retained by the respondent It is plain that it was created in 1993 or later and backdated The trial judge found that the respondent must have been aware that the letter was backdated Yet the respondent repeatedly maintained to the authorised officer that the letter was genuine and that he had had it in his possession when he carried out his first audit The trial judge s finding that the respondent did not act bona fide when he handed a copy of the letter to the Inspector is damning but unavoidable There is no doubt that conduct in dealing with an official investigation can itself be seen as conduct aggravating particular wrongdoing and it was argued that such conduct could also justify a finding of unfitness since the respondent appeared before the authorised officer in respect of his function as a director or auditor See Secretary of State for Trade and Industry v Reynard 2002 2 B C L C 625 It is not necessary to resolve that issue since it is plainly a matter which can be taken into account in the exercise of the court s discretion It is in my view a most serious matter The finding of lack of bona fides is certainly a finding of lack of probity and honesty occurring in the very significant context of the interaction with an authorised officer Moreover the trial judge drew the inevitable conclusion that the purpose of producing the letter had been to provide support for the respondent s assertion that he was at all times aware that Kentford was a trust company It bears repetition that the respondent maintained this stance over a period of three years This makes the respondent s behaviour all the more serious and makes even more damning his failure to explain the circumstances in which he came into possession of the letter which must have been in or after 1993 and how it was that of all the Kentford documents held by him the one document which had survived was bogus and yet was intended to provide assistance to him The terms of the letter are themselves unintentionally eloquent as to the true position On its face here was a letter from a person who had no official connection to the company whether as shareholder or director and directed to the directors and auditor of the company informing them of the nature of the business of the company It also seems clear from the terms of the letter itself that it was prompted by a need to demonstrate apparent compliance with the somewhat more demanding requirements as to corporate governance which had been introduced by the Act of 1990 Had the exercise of considering the precise gateways established on the evidence been carried out it seems clear that the implicit finding made by the trial judge that the complaints under s 160 2 b and d had all been made out would have been explicit and detailed It necessarily follows that the respondent would had been found to have fallen below the standards of behaviour expected of a director and auditor of a limited liability company and was thereby unfit to be associated with and to be concerned in the management of a company unless they were matters which would justify the Court in exercising its discretion in this favour Once these matters had been analysed in this way the height of the hurdle facing the respondent would have been apparent Furthermore it would have been clear that not all the matters complained of could have been characterised as occurring so long ago and when the respondent was in relative terms a junior accountant In particular the most serious matter being the respondent s conduct in respect of the use maintenance and deployment of the letter of the 23rd January 1990 occurred much later and at a time when Mr Traynor was dead and the respondent was no longer beholden to him While less serious it was also the case that the respondent had maintained to the very end and in the teeth of the evidence that he had not been a director of the company between 1989 and 1992 even though it was self evident that he had acted as such The trial judge found however that the respondent had displayed some candour at least in relative terms during his cross examination in the High Court which allowed the Court to conclude that his conduct was a thing of the past and that the experience of being caught up in other peoples deception and illegality has been a chastening one for him and one to which he will never risk returning This finding was central to the Court s conclusion that the case for disqualification or indeed any restriction had not been made out It is clear that this conclusion was almost entirely dependent on the Court s perception of s 160 as solely concerned with future risk of misbehaviour by the respondent It is axiomatic that the assessment of a witness is a matter for the trial judge Here however counsel for the Director referred us to extracts from the cross examination The starting point must be the trial judge s finding that the respondent s decision before the authorised officer was not bona fide Furthermore the respondent maintained stoutly that he had truly resigned as a director in 1989 a claim rejected by the trial judge It might be expected therefore that if the respondent had experienced a change of heart in respect of the position he had adopted it would be apparent from the content of the evidence which he gave I think it can be fairly said however that there is nothing in the content of the testimony which would justify a description of the evidence itself as candid and or repentant The following extract from the cross examination on Day 2 is illustrative 56 Q We know your view that persons can be directors of companies and have no idea what sort of business is carried on by the company Is it common in your experience for auditors of the company to have no idea what business is being carried on by the company A I was engaged to do the audit of Kentford Securities and I was told this was a trust company The activities of the trust or the actions being carried on by the trustees that I was not aware of 57 Q I am sorry the question I asked you Mr McCann is this is it unusual for a person to be an auditor of a company and have no idea what business is carried on in the company A In relation to Kentford I had asked Mr Traynor for sight of the trust documents so I could see The trust document was not made available to me but I took Mr Traynor at his word I made a judgment call and I relied on Mr Traynor s word that this was a trust company The activities of the trust I was not aware of 58 Q Is it unusual Mr McCann for a person to an auditor of a company and have no idea what sort of business that company is carrying on A The business of Kentford Securities was a business of a trust company and that is as far as I was aware It was a trust company 59 Q I am going to ask you a lot of questions about Kentford but before I ask you anything more I just want you to answer this general question It is a general proposition It is either yes or no Is it unusual for a person to be an auditor of a company and to have no idea what business is carried on by the company A If a company is in the business of manufacturing you know what goods it is manufacturing If it is a service you will know it is a service company So in this instance I was told it was a trust company and I didn t make more detailed inquiries in relation to the trustees Ultimately and after further exchanges Mr McCann eventually conceded I should have found out more about what it does so to answer your question no it would not be sufficient Subsequently he observed that It would be desirable to have sight of the trust documents to see what the nature of the trust was This answer reveals starkly the abject failure to conduct any proper audit in this case It was correct if easy for the respondent to say that he should have found out more that was because he knew almost nothing even though he was the auditor with the unintended benefit of also having been a director However nothing in the content of his evidence appears to deserve the adjective candid Certainly we have not been referred to any passage in the evidence which suggests an epiphany on the part of the respondent What is notably absent from his evidence is any ready acceptance that what the trial judge described as unacceptable behaviour was improper or any explanation of why he had taken the course he did particularly in relation to the Traynor letter It seems therefore that the trial judge s finding of relative candour and his conclusion that there was no recurrence of unacceptable behaviour likely came from the trial judge s assessment of the demeanour of the respondent while in court and under cross examination Lord Atkin once observed in Société d Avances Commerciales Société Anonyme Egyptienne v Merchants Marine Insurance Company The Palitana 1924 20 LI L Rep 140 at p 152 that an ounce of intrinsic merit or demerit in the evidence was worth pounds of demeanour but I do not doubt that the trial judge was fully entitled to consider in a searching and sympathetic way the disposition of the respondent The point here is rather different This case is itself a vivid illustration of what I consider was the flaw in the approach of the High Court which was unduly weighted in favour of the prediction of future misbehaviour and thus deflected attention from the evidence of past misconduct and its significance As already discussed prediction of future behaviour is a necessarily imprecise art Here however an ounce of demeanour outweighs the very substantial evidence of fact found by the Court after the painstaking forensic process of investigation by the Director of Corporate Enforcement and by the calling and testing of evidence before the High Court which by definition showed the respondent was in i breach of his duty as director and auditor ii had fallen below the standard expected of a director and auditor of a company having the privilege of limited liability and iii was thereby unfit to be concerned in the management of a company unless there were matters which could lead the Court in the exercise of its discretion not to disqualify him This result could only occur where the calculus used ascribes great indeed overwhelming weight to the prediction of future risk It seems that the trial judge was particularly influenced by the significant impact that a disqualification could have upon the respondent s present business Because the legal test was framed solely in terms of protection from future misconduct and because disqualification is likely in this case to have in some respects a penal effect the Court seems to have considered that such a consequence was to be avoided The disqualification regime as interpreted by the Supreme Court in Cahill v Grimes 2002 1 I R 372 is flexible both as to the terms and conditions of any disqualification and as to the tariff In addition there is the possibility of substituting an order of restriction under section 150 It is possible therefore even in the absence of a positive statutory regime for undertakings to devise orders which reasonably and accurately reflect the different considerations which arise in any case and the degree of gravity and the countervailing circumstances which a court discerns in the conduct of a particular respondent In this case however no order of any nature however qualified was imposed Making every allowance in this case I do not believe that the section can achieve its purpose in deterring misbehaviour improving corporate governance and even protection of the public if such a result were permitted to stand The trial judge dealt with this case carefully and sympathetically He was fully entitled in my view to make considerable allowances for the position of the respondent the culture of the times the fact that the respondent was a small cog in an operation and did not directly benefit from the illegality of Kentford He was able to point to a very considerable period during which he had practised without any adverse finding by his own professional body Furthermore he had in the words of the High Court judge provided testimonials from worthy individuals who were clients The trial judge was entirely correct I think on the unfairness of judging a person s character by reference solely to events in the past and by reference to the standards of today rather than those which applied at the time If the respondent had frankly acknowledged to the authorised officer his part as it was in the provision of services to Kentford which allowed Mr Traynor to operate the business and had given a full explanation then this case might have been very different However that is not what occurred here and in my view the cumulative effect of these matters is very grave If the approach taken by the High Court in this case were to become the standard for these applications it would significantly reduce the effectiveness of s 160 as a protection of the public both in respect of the individual directors and auditors and as a deterrent to others I would however be prepared to accept that the whole experience has been a chastening one for the respondent and that the process of court proceedings over a significant period of time has been in every respect a costly one and furthermore that the impact of disqualification may be particularly severe on him in his business as an auditor Accordingly I would propose re entering the matter with a view to considering whether a short period of disqualification and the conditions that might be attached to it by way of limitation to specific clients or limitation on sole practice as an auditor or otherwise might meet the merits of this case and still achieve the objects of the Act THE SUPREME COURT 74 07 Fennelly J Finnegan J O Donnell J IN THE MATTER OF KENTFORD SECURITIES LIMITED UNDER INVESTIGATION AND IN THE MATTER OF THE COMPANIES ACT 1963 2001 AND IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF CORPORATE ENFORCEMENT PURSUANT TO S 160 2 OF THE COMPANIES ACT 1990 Between THE DIRECTOR OF CORPORATE ENFORCEMENT Applicant and PATRICK MCCANN Respondent Judgment delivered by O Donnell J on the 30th day of November 2010 In 1988 the respondent Patrick McCann was a relatively recently qualified accountant working in a junior position in a firm called Chartered Secretarial Company CSC the principal of which was a Mr Sam Field Corbett As the name perhaps suggests the company provided company formation and secretarial facilities The respondent was in his late 20s but by that stage had already established his own accountancy firm It is recorded in the High Court judgment that it was part of his business plan that persons who dealt with CSC would be approached by him to provide auditing and accountancy services One of the companies for which CSC provided services was Kentford Securities Limited Kentford a company controlled by the late Mr Desmond Traynor albeit that Mr Traynor was neither a shareholder nor a director Mr Traynor was a very successful and well connected businessman and a major figure in relation to the affairs of CSC until he died in 1994 The respondent was in 1988 a director of Kentford On the 14th of May 1992 however a Notice of Change of Director dated the 13th April 1992 was filed in the Companies Office recording the resignation of the respondent as of the 14th March 1989 Whether the respondent truly resigned on that date and the notification was simply filed later or whether on the contrary the resignation was made on the 13th April 1992 and backdated to the 14th March 1989 was an issue in the High Court proceedings What is not in dispute is that the respondent was the auditor of Kentford and audited the accounts from 1989 to 1993 During the proceedings of the McCracken and Moriarty Tribunals dealing in part with the affairs of the late Mr Charles Haughey it emerged that Mr Traynor had operated the so called offshore Ansbacher deposits for a number of persons including Mr Haughey as part of the tax evasion scheme and that Kentford was a vehicle used by Mr Traynor for that purpose During the period when the respondent was the auditor to Kentford a sum amounting to IR 2 27 million passed through the Kentford accounts as part of the Ansbacher secret deposits being managed by Mr Traynor In June 1998 an authorised officer was appointed to investigate the affairs of Kentford The respondent was contacted and was interviewed on a number of occasions between 1999 and 2002 in the course of the investigation He informed the authorised officer that he did not have any books and records relating to Kentford that he had given all his audit working papers to Mr Traynor in 1994 and furthermore that he had resigned as a director in 1989 He sought to explain the fact that after that date he had signed documents including bank mandates and facility letters in which he was described as a director of Kentford as an oversight Mr McCann had been succeeded as a director of Kentford by an employee of a related company called Management Investment Services MIS of which Mr McCann was also a director However that person did not work for MIS in the period from October 1987 to September 1991 Consequently he gave evidence that he could not have been appointed as a nominee director to the company prior to 1991 The only document which Mr McCann did retain relating to Kentford was a letter of the 23rd January 1990 on Mr Traynor s notepaper and addressed to the directors of Kentford in the following terms Re Preparation of Annual Accounts I understand that it is now necessary to file accounts at the Companies Office when making an annual return I would appreciate if you could arrange for accounts to be prepared in respect of the year ended 31st of March 1990 Kentford Securities Limited is a trust company and as such does not trade and does not hold any assets or liabilities in its own right I would appreciate if you would instruct the auditor accordingly If the status of this company should change at any time in the future I will inform you Yours sincerely J D Traynor On each occasion when he was interviewed by the authorised officer Mr McCann maintained that he relied on this letter in the conduct of the audits and in particular as justification for not conducting any check of the company s bank accounts which would have revealed the very substantial passage of monies through accounts in respect of which he had signed mandates and facility letters A key feature of this case is the fact that the authorised officer was able to determine that the letter could not have been written on the 19th January 1990 as it purported to be because the telephone number on the notepaper was a seven digit number which did not become available from eircom until April 1993 at the earliest When confronted with this at interview before the authorised officer the respondent in the words of the trial judge attempted to answer the unanswerable or justify the unjustifiable His answers to the questions in the words of the trial judge could be characterised as vague and evasive Before the authorised officer the respondent maintained that the letter was genuine When these proceedings came to the High Court the respondent did accept that the letter must have been backdated but contended simply that it was backdated by Mr Traynor He did not elaborate on how it came into his possession or what he knew of the circumstances of its production The trial judge concluded that the respondent must have been aware that the letter was backdated He did not accept that the respondent had acted bona fide in relation to the letter when he provided a copy of it to the authorised officer The respondent also contended before the authorised officer and again in the High Court that the notification of resignation was not backdated and that he genuinely had resigned as a director as of 1989 The High Court judge concluded on the balance of probabilities that the respondent had not resigned in 1989 rather that he had resigned in 1992 and the form had been backdated in the words of the judgment to correct the paper record The trial judge concluded therefore that the respondent had acted as an auditor while being a director of the company This was a breach of s 187 2 a of the Companies Act 1990 the Act of 1990 The prohibition on an officer of a company being an auditor of that company is a longstanding provision of company law and was not one of the innovations in respect of corporate governance introduced by the Act of 1990 The trial judge concluded however on the balance of probabilities that this was not a conscious breach of the law In the High Court the applicant filed a detailed affidavit from Mr Colm Dunne a fellow of the Institute of Chartered Accountants in Ireland who prepared a detailed report on the manner in which the respondent conducted the audit of the Kentford He expressed the opinion that the respondent was unfit to be concerned in the management of a company He expressed the view that on the best interpretation of the facts as presented by the respondent the respondent had accepted appointment as an auditor when there was a significant threat to his objectivity by virtue of his relationship with Mr Traynor that he failed to mitigate that he relied on insufficient evidence to express an opinion on the Kentford financial statements that he backdated his audit opinion for 1990 and that he issued an unqualified opinion on financial statements that was misleading On the basis of another but less generous interpretation of the facts it was Mr Dunne s opinion that the Respondent produced materially misstated financial statements and raised a false audit opinion The judgment did not debate these issues in any depth Instead in the High Court decision Kentford Securities Under Investigation v Companies Acts 2007 I E H C 1 Unreported High Court Peart J 23rd January 2007 the trial judge said at p 9 I do not intend to set out all the detail of the complaint made by the applicant and the authorised officer in his report as to the many ways in which the respondent failed in his duty as an auditor b ut I am also satisfied that the respondent failed in his duty as an auditor of Kentford by signing unqualified reports on the financial statements for the years in question He also stated at p 10 that he was satisfied that he the respondent failed in his duty as an auditor by not looking behind whatever assurances that he was given as to the trust nature of the company The judgment concluded at p 10 In respect of all the matters about which the applicant makes complaint against the respondent I find against the respondent This is a very significant finding albeit one which appears amply justified on the evidence Nevertheless the trial judge refused to make the order sought He did so for what appears to be a number of reasons First the events occurred some time ago and it was apparent that the respondent s business was now successful and he had testimonials from a number of his financial clients The judge considered that the matters complained of related to a time between 16 and 20 years prior to the High Court hearing at a time when the respondent was a junior figure in the organisation and when he was a very small and insignificant cog in the larger wheel being turned by Mr Des Traynor It was Mr Traynor and his friends and acquaintances who were involved in the tax evasion scheme and who were the beneficiaries of the respondent s undoubted naivety lack of attention to his responsibilities and carelessness at the time It was also fair to say that the High Court was influenced quite properly by the very significant impact a disqualification order would have Disqualification as a director would not it seems pose any real difficulty for the respondent but disqualification from acting as an auditor could have a significant impact on his business which was largely involved in auditing work Critically the trial judge considered that there was no risk of the respondent returning to the irregular and improper conduct he was mixed up in all those years ago and that he had shown some appreciation of his position The judge concluded at p 12 that Whatever shortcomings there may have been and there were many in my view in the manner in which the respondent dealt with questions asked of him by the authorised officer in interviews conducted in March 1999 September 2001 and February 2002 he was at last forthcoming as to the reality in which he finds himself facing an application of this kind His answering of some of the questions put to him during these interviews could be characterised as vague and even at times evasive and did not display the same candour which was evident to me during his cross examination in his affidavits The High Court considered that on these findings the law properly applied did not require any order to be made under s 160 or indeed s 150 of the Act of 1990 The Court s reasoning in this regard is set out in an important passage at p 11 in the judgment The purpose of an order under s 160 of the Act is not punitive in nature but rather protective of the community The fact that the Court is satisfied that the respondent during the years in question failed to conduct himself in a manner that was proper and responsible is not something for which the Court must inflict a punishment That is not the Court s function under the section The only function of the Court is to where necessary and for such period as the Court might consider necessary prevent a respondent from acting as an auditor or other officer of a company where the evidence is sufficient to demonstrate that as a matter of probability that the person in question would present a current risk to members of the public who may be adversely affected Under s 160 the Court has a discretion whether or not to grant the order even where findings of fact are made which are consistent with the respondent being guilty of a breach of his duty as auditor and or that his conduct makes him unfit to be concerned in the management of a company It is important to note the use of the present tense in relation to unfitness to be involved in the management of a company That is relevant in the present case where the conduct complained of and found to have occurred did so between twelve and eighteen years ago The question to be considered is whether at the time of this application the past conduct makes him presently unfit to be so involved The reason for this being so is as I have just referred to that the section s purpose is not to punish the respondent but rather to ensure as far as possible that members of the public are protected from harm If the respondent is not somebody against who the public should be protected then the Court ought not to make the order sought even if the matters alleged to give rise to disqualification have been established as they have in this case It appears from this passage that the High Court found that the applicant had established the grounds for disqualification of the respondent under sections 160 2 b and d of the Act of 1990 but that the Court was exercising its discretion not to disqualify the respondent The trial judge dealt with this case with conspicuous care and sympathy and an impressive willingness to seek to place the respondent and his conduct in the precise context of the time having regard to his age experience and commercial practice If this decision could be characterised as merely the exercise of discretion by the trial judge then I would have accepted it without reservation notwithstanding my view that the result appears very lenient However having considered the argument made by counsel I am driven to the conclusion that there are in the judgment three interrelated errors of principle which are central to the decision of the High Court and accordingly which mean the decision must be reversed First although the judgment under appeal does not itself cite any authority it is clear that in identifying the purpose of disqualification it seeks to paraphrase the oft cited passage from the judgment of Browne Wilkinson V C in In re Lo Line Electronic Motors Ltd and others 1988 Ch 477 where he stated at p 486 that The primary purpose of the section is not to punish the individual but to protect the public against the future conduct of companies by persons whose past records as directors of insolvent companies have shown them to be a danger to creditors and others However the paraphrase contained in the High Court judgment converts the negative not the primary purpose formula in Lo Line into a positive statement that the only function of the section is to prevent the respondent from acting as an auditor where the evidence shows as a matter of probability that the person would present a current risk to the public This is in my view significantly different from the Lo Line formulation The second and related error is the tendency to treat the observations in Lo Line and a fortiori the paraphrase in the High Court judgment as a gloss on the statute so as to replace consideration of the words and structure of the statute itself Not only does this deprive the court of the guidance to be obtained from the entirety of the section in its context it also means that that the court does not have the benefit of the decision making structure that the section has been held to require The third matter is perhaps a consequence of the first two It follows almost ineluctably from the two matters already identified that the focus of a court taking this approach will be on the possibility of future wrongdoing something inherently difficult to establish to the satisfaction of a court particular to the high standard that the disqualification procedure has been held to require By the same token a court is almost disabled from considering or at least giving sufficient weight to something to which in my judgment the Act of 1990 attaches considerable significance namely the consideration of a respondent s past conduct and the gravity attaching to it When such a lopsided posture is adopted it is much more likely that a court will find it difficult to satisfy itself to the level required that disqualification is necessary thus leading to decisions which in my view at least are more indulgent to respondent wrongdoers than the Act intends It is necessary to consider each of these matters in some further detail The critical passage from the High

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  • land any of the following burdens namely i any judgment mortgage recognizance State bond inquisition or lis pendens whether existing before or after the first registration of the land The Act of 1964 accordingly makes it clear that the registration of a judgment mortgage shall rather than operating to transfer the interest of the registered owner to the judgment creditor operate to charge the interest of the judgment debtor subject to the burdens if any registered as affecting the interest of the judgment debtor and burdens which affect registered land without registration by virtue of section 72 of the Act of 1964 and all unregistered rights subject to which the judgment debtor held his interest at the time of registration of the judgment mortgage affidavit The judgment debt can be served out of the interest of a joint tenant who is a judgment debtor and is no different in its effect to a rent charge or other encumbrance affecting the interest of a joint tenant which would not affect the unity of title Section 4 c of the Succession Act 1965 provides as follows 4 c The estate or interest of a deceased person under a joint tenancy where any tenant survived the deceased person shall be deemed to be an estate or interest ceasing on his death The effect of this deeming provision is that for the purposes of the Succession Act 1965 on the death of a joint tenant the lands do not pass to his personal representative and do not form part of his estate This however is a deeming provision only and does not affect the common law and it is the common law which requires a surviving joint tenant to be registered as full owner The effect of the provisions of the Registration of Title Act 1964 section 71 4 is that the registration of a judgment mortgage against the interest of a joint tenant does not effect severance of the joint tenancy as it operates as a charge only and not as a mortgage It has not the effect of divesting the joint tenant of his interest The Act of 1964 in section 62 and in section 71 4 distinguishes between charges created by a registered owner and judgment mortgages The relevant provisions of section 62 are as follows 62 1 A registered owner of land may subject to the provisions of this Act charge the land with the payment of money either with or without interest and either by way of annuity or otherwise and the owner of the charge shall be registered as such 6 On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts and the registered owner of the charge shall for the purpose of enforcing his charge have all the rights and powers of a mortgagee under a mortgage by deed including the power to sell the estate or interest which is subject to the charge The Conveyancing Act 1881 defines mortgage at section 2 vi as follows Mortgage includes any charge on any property for securing money or monies worth and mortgage money means money or monies worth secured by a mortgage and mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property and mortgagee includes any person from time to time deriving title under the original mortgagee and mortgagee in possession is for the purposes of this Act a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property The fact that mortgage in the Conveyancing Act 1881 includes a charge and that a judgment mortgage is a charge does not affect the well settled law that a charge on the interest of a joint tenant will not effect severance Thus to come within section 62 the charge must be created by the registered owner and a judgment mortgage not being created by the registered owner does not come within the section and accordingly will not operate as a mortgage pursuant to section 62 6 of the Act A judgment mortgage is registerable under section 69 1 i of the Act The effect of section 71 of the 1964 Act is that registration of a judgment mortgage affidavit creates a burden only it does not operate as a mortgage by deed The registered owner is not thereby divested of his interest and so unity of title is not affected and severance does not occur The judgment creditors remedy is not as mortgagee but rather he has such rights and remedies for the enforcement of the charge as may be conferred on him by order of the Court Finally it is necessary to consider whether the order of the 24th November 2004 in the action taken by Dermot Coyne against Liam Lawlor could have effected severance It is well settled that a binding contract for sale as it divests the joint tenant of his equitable interest in his estate will effect severance However an order for sale of the interest of a joint tenant has not the effect of divesting a joint tenant of his interest thus a judgment mortgage can be registered against the same In Re Scanlon 1897 1 I R 462 The joint tenant will only be divested of his interest giving rise to severance on a purchaser entering into an enforceable contract for sale pursuant to the order for sale Having regard to the foregoing I am satisfied that the respondents joint tenancy has not been severed 2 On the death of a joint tenant of registered land whose interest is subject to a judgment mortgage does the judgment mortgage continue to affect the lands The distinguishing feature of a joint tenancy is the right of survivorship jus accrescendi The last surviving joint tenant will hold the entire land The lands accrue to the surviving joint tenant by right of survivorship and not by descent The right of survivorship is an incident of the title created by the original grant to the joint tenants and it is by virtue of the original grant that the survivor becomes entitled to the entire The estate of a joint tenant ceases on death Any charge created on his interest by the deceased joint tenant in the absence of severance ceases to affect the land on the death of that joint tenant and the surviving joint tenant taking by right of survivorship takes free of the charge Thus Co Litt 286 deals with the matter as follows Also if two joint tenants be seized of an estate in fee simple and the one grants a rent charge by his deed to another out of that which belongs to him in this case during the life of the grantor the rent charge is effectual but after his decease the grant of the rent charge is void so as to charge the land for he who has the land by survivorship shall hold the whole land discharged And the cause is for that he who survives claims and has the land by survivorship and has not nor can claim anything by descent from his companion Later Coke continues as follows By which etc is implied that so it is if one joint tenant acknowledge a recognizance or a statute or suffers a judgment in an action of debt etc and dies before execution had it shall not be executed afterwards But if execution be sued in the life of the conusor it shall bind the survivor And And where Littleton puts the case of a rent charge it is so likewise implied that if one joint tenant grants a common of pasture or of turbary or of estovers or a corody or such like out of his part or a way over the land this shall not bind the survivor for it is a maxim in law that jus accresendi praefertur oneribus and there is another maxim that alienato res praefertur juri accresendi And Here again Littleton shews the reason and the cause wherefore the survivor shall not hold the land charged is for that he claims the land from the first feoffor and not by his companion which is Littleton s meaning when he says that he claims by survivor for the surviving feoffee may plead enfeffment to himself without any mention of his joint feoffee That this was the common law is clear from Lord Abergavenny s Case Pasch 5 Jacobi The headnote reads as follows When judgment is given against one of two joint tenants for life in an action of debt and afterwards that one releases to the other before execution such release shall not bar the execution of the plaintiff But if such joint tenant had died before execution the survivor should hold the land discharged of any execution In the body of the judgment there is a reference to authorities and the judgment continues as follows And upon all the said books it was collected for good law that if two joint tenants be in fee and one grants a rent charge in fee and afterwards releases to the other in that case although to some intent he to whom the release is made is in by the first feoffer and no degree is made betwixt them yet as to the grantee of the rent charge he is under the joint tenant who released and he who survives shall not avoid it after the death of him who released for he who survives by acceptance of the release has deprived himself of the ways and means to avoid the charge for jus accresendi the right of survivorship was the sole means to have avoided it and the right of his survivorship is utterly taken away by the release and so the doubt in 33 H 6 5 a well resolved The common law accordingly is that the right of survivorship arises from the original grant It is an incident of the interest of each joint tenant The interest of a joint tenant cannot survive his death The surviving joint tenant takes not by way of descent from the deceased joint tenant but by virtue of the original grant It follows accordingly that any burden created on the interest of a joint tenant cannot continue to affect the lands after his death The surviving joint tenant will take free of such burden That being so the respondent holds the lands comprised in Folios 573F of the Register County Dublin and Folio 47924F of the Register County Dublin freed and discharged from the appellants judgment mortgages The Land and Conveyancing Law Reform Act 2009 In this judgment I have stated the law prior to the commencement of the Land and Conveyancing Law Reform Act 2009 on the 1st December 2009 except for section 132 which commenced on the 28th February 2010 which is the law applicable to the issues in this case The Act of 2009 makes significant changes in that law Section 30 of the Act provides as follows 1 From the commencement of this Part any a conveyance or contract for a conveyance of land held in joint tenancy or b acquisition of another interest in such land by a joint tenant without the consent referred to in subsection 2 is void both at law and in equity unless such consent is dispensed with under section 31 2 e 2 In subsection 1 consent means the prior consent in writing of the other joint tenant or where there are more than one other all the other joint tenants 3 From the commencement of this part registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered the judgment mortgage is extinguished upon the death of the judgment debtor 4 Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity Accordingly the Act leaves unchanged the common law as hereinbefore stated the registration of a judgment mortgage against the interest in registered land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered the judgment mortgage is extinguished upon the death of the judgment debtor Section 31 of the Act provides as follows 31 1 Any person having an estate or interest in land which is co owned whether at law or in equity may apply to the court for an order under this section 2 An order under this section includes a An order for partition of the land amongst the co owners b an order for the taking of an account of encumbrances affecting the land if any and the making of enquiries as to the respective priorities of any such encumbrances c an order for sale of the land and distribution of the proceeds of sale as the court directs d an order directing that accounting adjustments be made as between the co owners e an order dispensing with the consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld f such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case 3 In dealing with an application for an order under subsection 1 the court may a make an order with or without conditions or other requirements attached to it or b dismiss the application without making any order or c combine more than one order under this section 4 In this section a a person having an estate or interest in land includes a mortgagee or other secured creditor a judgment mortgage or a trustee b Accounting adjustments include i payment of an occupation rent by a co owner who has enjoyed or is continuing to enjoy occupation of the land to the exclusion of any other co owner ii compensation to be paid by a co owner to any other co owner who has incurred disproportionate expenditure in respect of the land including its repair or improvement iii contributions by a co owner to disproportionate payments made by any other co owner in respect of the land including payments in respect of charges rates rents taxes and other outgoings payable in respect of it iv re distribution of rents and profits received by a co owner disproportionate to his or her interest in the land v any other adjustment necessary to achieve fairness between the co owners 5 Nothing in this section affects the jurisdiction of the court under the Act of 1976 the Act of 1995 and the Act of 1996 That is the Family Home Protection Act 1976 the Family Law Act 1995 and the Family Law Divorce Act 1996 6 The equitable jurisdiction of the court to make an order for partition of land which is co owned whether at law or in equity is abolished Thus the Act confers upon a judgment creditor the right to apply for any of the orders mentioned in section 31 2 It would be of assistance to those called upon to advise judgment creditors and judgment debtors and indeed to the courts if the Act gave guidance as to the basis upon and circumstances in which the courts will exercise the discretion conferred by section 31 3 In the absence of such guidance the circumstances in which for example a judgment creditor will be granted or refused an order for sale must wait the development of jurisprudence on a case by case basis The Act in section 117 deals with the effect of registration of a judgment mortgage It provides as follows 117 1 Registration of a judgment mortgage under section 116 operates to charge the judgment debtor s estate or interest in the land with the judgment debt and entitles the judgment mortgagee to apply to the court for an order under this section or section 31 2 On such application the court may make a an order for the taking of an account of other encumbrances affecting the land if any and the making of enquiries as to the respective priorities of any such encumbrances b an order for the sale of the land and where appropriate the distribution of the proceeds of sale c such other order for enforcement of the judgment mortgage as the court thinks appropriate 3 The judgment is subject to any right or encumbrance affecting the judgment debtor s land whether registered or not at the time of its registration 4 For the purposes of this section a right or encumbrance does not include a claim made in an action to a judgment debtor s estate or interest in land including such an estate or interest which a person receives whether in whole or in part by an order made in the action whether by way of claim or counterclaim in the action unless the claim seeks an order a under the Act of 1976 the Act of 1995 or the Act of 1996 or b specifically against that estate or interest in land 5 Section 74 applies to a voluntary conveyance of land made by the judgment debtor before the creditor registers a judgment mortgage against that land under section 116 as if the creditor were a purchaser for the purposes of section 74 Section 117 does not make any clearer the provisions of section 31 as to the basis upon and circumstances in which the courts should exercise the discretion conferred For this reason it is to be regretted that the opportunity presented by the Act of clarifying fully the reliefs and remedies available to a judgment creditor for the benefit of both the judgment creditor and the judgment debtor was not availed of by the Legislature Disposition I would dismiss the appeal and affirm the Order of the High Court THE SUPREME COURT Record No 016 2009 Denham J Finnegan J O Donnell J BETWEEN HIS HONOUR JUDGE ALAN P MAHON HER HONOUR MARY FAHERTY AND HIS HONOUR JUDGE GERALD B KEYES MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS PLAINTIFF APPELLANT AND NOEL LAWLOR ADMINISTRATOR AD LITEM OF THE ESTATE OF LIAM LAWLOR DECEASED AND BY ORDER HAZEL LAWLOR DEFENDANTS RESPONDENTS Judgment of Mr Justice Finnegan delivered on the 25th day of November 2010 The hearing in the High Court proceeded on the basis of an agreed statement of facts as follows Statement of facts 1 The above application relates to two portions of land one comprised in Folio 573F and the other comprised in Folio 47924F of the Register County Dublin Liam Lawlor and Hazel Lawlor were registered as owners of the lands on the 14th November 1977 and the 13th August 1982 respectively Both portions of land adjoin each other the premises Somerton House being the family home of the late Liam Lawlor and Hazel Lawlor is comprised in Folio 47924F 2 Both folios are subject to a number of burdens but the burdens relevant to this application are a series of judgment mortgages relating to orders for costs obtained by the plaintiff which were registered as judgment mortgages in respect of both folios The judgment mortgages were so registered between July 2002 and March 2004 3 The late Liam Lawlor and Hazel Lawlor were registered as owners of the lands as joint tenants In his affidavit sworn on the 14th October 2002 the late Liam Lawlor made reference to a deed of gift dated the 9th May 1997 which purported to be an assurance of his interest in the premises comprised in the folios to Hazel Lawlor Hazel Lawlor was at all times unaware of this deed the original is missing and was never delivered to Hazel Lawlor and the parties accept that the same was ineffective 4 Proceedings were commenced by Dermot Coyne by way of special summons in 2003 Record No 2003 259Sp By order of Mr Justice Kearns given on the 24th November 2004 the sum of 273 669 26 was declared well charged on the lands The said order related to a judgment obtained by Dermot Coyne against the late Liam Lawlor on the 10th February 2003 The judgment mortgage was registered as burdens No 12 and 13 respectively on the said folios on the 5th March 2003 The said order provided that in default of a dispute in respect of the sum by the late Liam Lawlor that the lands would be sold By further order dated the 19th October 2004 Mr Justice Kearns amended the previous order as therein provided 5 The plaintiff in the current proceedings was a notice party in respect of the proceedings bought by Dermot Coyne The present proceedings were issued by the plaintiff on the 24th March 2003 with the present defendant being substituted by order of Mr Justice Kearns made on the 12th January 2004 6 It was accepted that while the proceedings instituted by Dermot Coyne were proceeding there was no need for the plaintiff in these proceedings to pursue the matter 7 By Notice of Motion dated the 23rd October 2006 Dermot Coyne applied to the court for an order discharging the well charging order made by Mr Justice Kearns At that stage the plaintiffs in these proceedings sought to take over carriage of those proceedings 8 The late Liam Lawlor died on the 22nd October 2005 No attempt has been made to apply for a Grant of Probate in respect of his estate No monies were paid by the late Liam Lawlor during his lifetime to the defendants sic in respect of the said sums The joint tenancy had not been severed at the date of his death 9 By Notice of Motion dated the 30th July 2007 Hazel Lawlor applied for an order dismissing the plaintiffs proceedings for want of prosecution for inordinate delay and alternatively striking out the proceedings by reason of the absence of jurisdiction to grant the relief sought and seeking an order directing a trial of issues on a preliminary point 10 By order dated the 18th January 2008 Ms Justice Laffoy directed that Hazel Lawlor be joined as a co defendant to the proceedings and directed that the issue of the notice of motion seeking determination of a point of law as a preliminary issue namely the effect of the registration of a judgment mortgage on the said folio 11 The matter now comes before the court for the determination of that issue The appellant issued six special summonses on the 24th March 2003 each relating to one of the judgment mortgages which had been registered by the appellant against the interest of Liam Lawlor in the lands comprised in Folio 47924F and Folio 573 of the Register of Freeholders County of Dublin naming Liam Lawlor as defendant Following the death of Liam Lawlor Noel Lawlor administrator ad litem of the estate of Liam Lawlor and Hazel Lawlor were by orders of the court substituted as defendants By leave of the court the second named respondent issued a motion seeking a trial of a preliminary issue determining the status or effect of the registration of the judgment mortgages and an order that the judgment mortgages are void and or are of no effect The preliminary issue came on for hearing before the High Court Laffoy J The second named respondent the moving party on the preliminary issue contended that the registration of the judgment mortgages against the interest of Mr Lawlor who was one of two joint tenants did not sever the joint tenancy and that on the death of Mr Lawlor the joint tenancy not having been severed the second named respondent became the sole owner of the lands by right of survivorship free from the judgment mortgages For the appellant it was contended that the registration of the judgment mortgages against the interest of Mr Lawlor effected severance so that Mr Lawlor thereupon became the owner of an undivided interest subject to the judgment mortgages and that on his death that undivided interest became part of his estate and the judgment mortgages remained as an encumbrance affecting the same In a judgment delivered on the 30th July 2008 the High Court Laffoy J dealt in detail with severance of a joint tenancy by the registration of a judgment mortgage in relation to unregistered land In relation to registered land she considered the Registration of Title Act 1964 and the changes thereby effected in the system of registration of title and in particular considered the effect of section 4 c of the Succession Act 1965 and section 62 section 69 and section 71 of the Registration of Title Act 1964 The first question for decision was whether registration of a judgment mortgage on registered land in which a joint tenancy exists severs the joint tenancy The High Court held that it did not Further it held that the registration of the judgment mortgages against Mr Lawlor s interest as joint tenant in the lands was subject to Mrs Lawlor s right of survivorship so that in the events which happened that Mr Lawlor pre deceased her without the joint tenancy having been severed she became entitled to be registered as full owner with absolute title freed and discharged from the judgment mortgages From the judgment and order of the High Court the appellant appeals Discussion 1 Does registration of a judgment mortgage against the interest of a joint tenant in registered land sever the joint tenancy Severance converts a joint tenancy into a tenancy in common It occurs where a joint tenant alienates his interest inter vivos or in equity by an enforceable contract to alienate or by the subsequent acquisition of a further estate in the land Thus if one joint tenant creates a mortgage or life interest out of his interest severance occurs York v Stone 1709 1 Salk 158 Re Pollard s Estate 1863 32 L J Ch 657 and Co Litt 302 The creation of a mere encumbrance such as a rent charge however does not effect severance Co Litt 286 A joint tenancy is also severed by partition or by homicide See also The Law of Real Property Megarry and Wade 4th edition pp 404 407 and Challis Real Property 3rd edition footnote at page 367 In relation to unregistered land the Judgment Mortgage Ireland Act 1850 section 7 has the effect that the registration of a judgment mortgage against the share of a joint tenant involves the transfer of the judgment debtor s interest to the judgment creditor as if an effectual conveyance had been made executed and registered Thus registration of a judgment mortgage affidavit effects severance as it destroys one of the four unities unity of title and so creates a tenancy in common McIlroy v Edgar 7 L R Ir 521 In relation to registered land it was generally considered that section 21 of the Registration of Title Act 1891 had the like effect and that registration of a judgment mortgage severed the joint tenancy there remained some doubt about this by virtue of section 45 1 of the Act which provided for the registration of a judgment mortgage as a burden only Section 21 provided as follows 21 1 From and after the date of the registration of any land including in the word land tenements and incorporeal hereditaments the registration of the affidavit required by the Act passed in the session of the thirteenth and fourteenth years of the reign of Her present Majesty chapter 29 and the Acts amending the same in this section referred to as the said Acts for the purpose of registering a judgment as a mortgage upon the land shall be made in the prescribed manner and with such entries as may be prescribed 2 Immediately upon such registration all such and the same consequences in all respects shall ensue and all such and the same rights powers and remedies in all respects shall be acquired and possessed by every or any person as would have ensued or been acquired and possessed by or by reason of the registration of such affidavit in the Registry of Deeds pursuant to the provisions of the said Acts if this Act had not passed The Registration of Title Act 1964 section 71 provides as follows 71 1 The registration of the affidavit required by section 6 of the Judgment Mortgage Ireland Act 1850 for the purpose of registering a judgment as a mortgage shall in the case of registered land be made in the prescribed manner and with such entries as may be prescribed 2 In an affidavit registered after the commencement of this Act the land shall be sufficiently described by reference to the number of the folio of the register and the county in which the land is situate 3 The affidavit shall be expressed to be made by the creditor specified in section 6 of the said Act of 1850 or by a person authorised to make it by section 3 of the Judgment Mortgage Ireland Act 1858 4 Registration of an affidavit which complies with the said sections and this section shall operate to charge the interest of the judgment debtor subject to a the burdens if any registered as affecting that interest b the burdens to which though not so registered that interest is subject by virtue of section 72 and c all unregistered rights subject to which the judgment debtor held that interest at the time of the registration of the affidavit and the creditor shall have such rights and remedies for the enforcement of the charge as may be conferred on him by order of the court Section 69 1 i of the Act of 1964 provides as follows 69 1 There may be registered as affecting registered land any of the following burdens namely i any judgment mortgage recognizance State bond inquisition or lis pendens whether existing before or after the first registration of the land The Act of 1964 accordingly makes it clear that the registration of a judgment mortgage shall rather than operating to transfer the interest of the registered owner to the judgment creditor operate to charge the interest of the judgment debtor subject to the burdens if any registered as affecting the interest of the judgment debtor and burdens which affect registered land without registration by virtue of section 72 of the Act of 1964 and all unregistered rights subject to which the judgment debtor held his interest at the time of registration of the judgment mortgage affidavit The judgment debt can be served out of the interest of a joint tenant who is a judgment debtor and is no different in its effect to a rent charge or other encumbrance affecting the interest of a joint tenant which would not affect the unity of title Section 4 c of the Succession Act 1965 provides as follows 4 c The estate or interest of a deceased person under a joint tenancy where any tenant survived the deceased person shall be deemed to be an estate or interest ceasing on his death The effect of this deeming provision is that for the purposes of the Succession Act 1965 on the death of a joint tenant the lands do not pass to his personal representative and do not form part of his estate This however is a deeming provision only and does not affect the common law and it is the common law which requires a surviving joint tenant to be registered as full owner The effect of the provisions of the Registration of Title Act 1964 section 71 4 is that the registration of a judgment mortgage against the interest of a joint tenant does not effect severance of the joint tenancy as it operates as a charge only and not as a mortgage It has not the effect of divesting the joint tenant of his interest The Act of 1964 in section 62 and in section 71 4 distinguishes between charges created by a registered owner and judgment mortgages The relevant provisions of section 62 are as follows 62 1 A registered owner of land may subject to the provisions of this Act charge the land with the payment of money either with or without interest and either by way of annuity or otherwise and the owner of the charge shall be registered as such 6 On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts and the registered owner of the charge shall for the purpose of enforcing his charge have all the rights and powers of a mortgagee under a mortgage by deed including the power to sell the estate or interest which is subject to the charge The Conveyancing Act 1881 defines mortgage at section 2 vi as follows Mortgage includes any charge on any property for securing money or monies worth and mortgage money means money or monies worth secured by a mortgage and mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property and mortgagee includes any person from time to time deriving title under the original mortgagee and mortgagee in possession is for the purposes of this Act a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property The fact that mortgage in the Conveyancing Act 1881 includes a charge and that a judgment mortgage is a charge does not affect the well settled law that a charge on the interest of a joint tenant will not effect severance Thus to come within section 62 the charge must be created by the registered owner and a judgment mortgage not being created by the registered owner does not come within the section and accordingly will not operate as a mortgage pursuant to section 62 6 of the Act A judgment mortgage is registerable under section 69 1 i of the Act The effect of section 71 of the 1964 Act is that registration of a judgment mortgage affidavit creates a burden only it does not operate as a mortgage by deed The registered owner is not thereby divested of his interest and so unity of title is not affected and severance does not occur The judgment creditors remedy is not as mortgagee but rather he has such rights and remedies for the enforcement of the charge as may be conferred on him by order of the Court Finally it is necessary to consider whether the order of the 24th November 2004 in the action taken by Dermot Coyne against Liam Lawlor could have effected severance It is well settled that a binding contract for sale as it divests the joint tenant of his equitable interest in his estate will effect severance However an order for sale of the interest of a joint tenant has not the effect of divesting a joint tenant of his interest thus a judgment mortgage can be registered against the same In Re Scanlon 1897 1 I R 462 The joint tenant will only be divested of his interest giving rise to severance on a purchaser entering into an enforceable contract for sale pursuant to the order for sale Having regard to the foregoing I am satisfied

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  • and determining an appeal under this section an appeals committee shall act in accordance with such procedures as may be determined from time to time by the Minister following consultation with patrons national associations of parents recognised school management organisations and recognised trade unions and staff associations representing teachers and such procedures shall ensure that a the parties to the appeal are assisted to reach agreement on the matters the subject of the appeal where the appeals committee is of the opinion that reaching such agreement is practicable in the circumstances b hearings are conducted with the minimum of formality consistent with giving all parties a fair hearing and c appeals are dealt with within a period of 30 days from the date of the receipt of the appeal by the Secretary General except where on the application in writing of the appeals committee stating the reasons for a delay in determining the appeal the Secretary General consents in writing to extend the period by not more than 14 days 5 On the determination of an appeal made under this section the appeals committee shall send notice in writing of its determination of the appeal and the reasons for that determination to the Secretary General 6 Where a an appeals committee upholds a complaint in whole or in part and b it appears to the appeals committee that any matter which was the subject of the complaint so far as upheld should be remedied the appeals committee shall make recommendations to the Secretary General as to the action to be taken 7 As soon as practicable after the receipt by the Secretary General of the notice referred to in subsection 5 the Secretary General a shall by notice in writing inform the person who made the appeal and the board of the determination of the appeals committee and the reasons therefor and b in a case to which subsection 6 applies may in such notice give such directions to the board as appear to the Secretary General having regard to any recommendations made by the appeals committee to be expedient for the purpose of remedying the matter which was the subject of the appeal and the board shall act in accordance with such directions 8 The Minister in consultation with patrons of schools national associations of parents recognised school management organisations and recognised trade unions and staff associations representing teachers shall from time to time review the operation of this section and section 28 and the first such review shall take place not more than two years from the commencement of this section 9 In the case of a school which is established or maintained by a vocational education committee an appeal against a decision of the board of such school shall lie in the first instance to the vocational education committee and thereafter to the Secretary General in accordance with subsection 1 10 The Minister shall from time to time following consultation with vocational education committees national associations of parents and recognised trade unions and staff associations representing teachers prescribe a the procedures for appeals under this section to vocational education committees and b which appeals shall inquire into whether the procedure adopted by a board in reaching a decision or conducting an appeal was fair and reasonable and which appeals shall be by way of a full re hearing 11 The Secretary General may in accordance with sections 4 1 i and 9 of the Public Service Management Act 1997 assign the responsibility for the performance of the functions for which the Secretary General is responsible under this section to another officer of the Department of Education and Science 12 For the purposes of subsection 1 c student means a person who applies for enrolment at a school and that person or his or her parents may appeal against a refusal to enroll him or her in the same manner as a student or his or her parents may appeal a decision under this section Emphasis added Construing Section 29 14 First it is appropriate to consider the words of the section The committee is called the appeals committee The description of the process in s 29 1 is clear Where a board refuses to enrol a student in a school the parent of the student following any appeal procedures provided by the school or patron may appeal that decision to the Secretary General of the Department of Education and Science and that appeal will be heard by a committee appointed under s 29 2 Section 29 2 states that for the purpose of an appeal under the section the Minister shall appoint a committee As already noted this is referred to as an appeals committee 15 The process is called an appeal in s 29 4 The procedures may be determined by the Minister following consultation 16 It is specifically provided that the parties to the appeal be assisted to reach agreement on matters the subject of the appeal where the appeals committee is of the opinion that reaching such agreement is practicable Thus in this process there is a statutory recognition of the benefits of mediation where it is practicable 17 The statute provides that the procedures be conducted with the minimum of formality consistent with giving all parties a fair hearing Such provision is consistent with a fair appeals process 18 Section 29 4 c makes provision for time limits in reference to the appeal unless there are stated reasons for the delay Even then there is a limit on the permitted statutory extension of time 19 Section 29 5 provides that on the determination of an appeal the appeals committee shall send notice in writing of its determination and the reasons to the Secretary General 20 Section 29 6 provides that if the appeals committee upholds a complaint and considers it should be remedied the appeals committee may make recommendations to the Secretary General as to the actions to be taken 21 Section 29 7 provides that as soon as practicable after the receipt of the notice by the Secretary General the Secretary General shall by notice in writing inform the person who made the appeal and the board of the determination and the reasons of the appeals committee And if the appeals committee has upheld a complaint and made recommendations the Secretary General may as appears expedient give directions to the board and the board shall act in accordance with such directions Consequently it is clear that the appeals committee may make recommendations and the Secretary General then may give such directions to the board as appear to the Secretary General having regard to any recommendations made by the appeals committee to be expedient for the purpose of remedying the matter which was the subject of the appeal The board is required to act in accordance with such directions So there is a specific reference to remedying the matter This is consistent with a full hearing with jurisdiction to remedy the matter 22 Taking an overview of s 29 it is clear that the words appeal and appeals are dominant They appear 21 times excluding references to appealed and appeals committee Further the decision making body is called an appeals committee 23 The words in s 29 are very clear The term appeal is not obscure It has a plain meaning in relation to procedures The concept of an appeal is a full hearing on the merits with the jurisdiction to make a determination on the issues raised An appeal goes beyond a review of a decision making process 24 As the words of s 29 are clear with a plain meaning they should be so construed The literal meaning is clear unambiguous and not absurd There is no necessity indeed it would be wrong to use other canons of construction to interpret sections of a statute which are clear The Oireachtas has legislated in a clear fashion and that is the statutory law 25 Consequently the appeals process enables the appeals committee to have a full hearing on the matter and if so determined to replace its judgment on the matter for that of the Board and to make such recommendations as it considers appropriate Such a decision is anticipated as a possible outcome of an appeal by the section itself in the provisions enabling a Secretary General to require a board to remedy a situation in accordance with the recommendation of an appeal committee 26 Thus the jurisdiction of an appeals committee is not limited to a review for example of the lawfulness or reasonableness of a decision of a board of management Conclusion 27 For the reasons given I would apply a literal interpretation to the section and thus I am satisfied that an appeals committee has the jurisdiction to conduct a full hearing on an appeal under s 29 of the Act It is not limited to a review of the decision of the board of management 28 Consequently I would hold that the High Court erred in its interpretation of s 29 of the Act in determining that an appeals committee is limited to the review of the lawfulness and or reasonableness of a decision of the board of management For the reasons given I would allow the appeal on this preliminary issue THE SUPREME COURT Appeal No 234 2009 Murray C J Denham J Hardiman J Fennelly J Finnegan J Between Board of Management of St Molaga s National School Applicant Respondent and The Secretary General of the Department of Education and Science and Kevin Meehan Máire Ní Mhairtín and Paddy Hogan Respondents Appellants and A and B Notice Parties Judgment delivered the 23rd day of November 2010 by Denham J 1 This appeal raises a net point of statutory interpretation It is a preliminary issue 2 The board of management of St Molaga s National School the applicant respondent referred to in this judgment as the board of management brought judicial review proceedings in the High Court The Secretary General of the Department of Education and Science is the first named respondent appellant and is referred to as the Secretary General Kevin Meehan Máire Ní Mhairtín and Paddy Hogan the second to fourth named respondents appellants were members of the appeals committee and are referred to as the appeals committee The respondents appellants are referred to collectively as the appellants A and B the notice parties are the parents who sought to enrol their children in St Molaga s National School and are referred to as the parents 3 In summary the facts of this case are that in about February 2008 the parents applied for places in St Molaga s National School for their two children who were 10 and 9 years of age at that time The parents had recently moved to Balbriggan In response to the application the parents were told verbally that the school was full and that no more pupils were being accepted The refusal was confirmed in writing on the 6th February 2008 In that written confirmation it was stated that the school was full 4 St Molaga s National School is a senior primary school with 3rd to 6th classes only It has a longstanding relationship with St Peter and St Paul s School which caters for children to 2nd class only The published enrolment policy of St Molaga s National School is to give priority to pupils entering 3rd class having completed 2nd class in St Peter and St Paul s School then to siblings of children already in the school then to catholic children of the parish then to catholic children outside the parish then to non catholic children of the parish and finally to non catholic children from outside the parish There is no formal transfer policy to cater for children seeking to enter the school other than new entrants in 3rd class In practice it appears that the school has decided to accept all entrants from 2nd class in St Peter and St Paul s School and appears to have decided to take no other entrants 5 The board of management refused to enrol the two daughters of the parents The reason they gave was that the school was full The parents appealed those decisions to the appeals committee The appeals committee allowed the appeal The board of management brought judicial review proceedings of the decisions of the appeals committee The High Court Irvine J on the 17th February 2009 allowed the appeal and made orders of certiorari of the decision of the appeals committee The appeals committee has appealed to this Court against the judgment and order of the High Court quashing the decisions of the appeals committee Preliminary Issue 6 The Court determined that it would consider a preliminary issue being the interpretation of s 29 of the Education Act 1998 hereinafter referred to as the Act of 1998 This may also be described as interpreting the jurisdiction of the appeals committee when hearing an appeal pursuant to s 29 of the Act of 1998 The High Court 7 The learned High Court Judge accepted the board of management s submission that a s 29 appeal is limited in its scope The learned High Court Judge summarised her conclusion as follows The board of management of St Molaga s had been trying for a period of nine years prior to 2007 to continue expanding its school in the face of a lack of resources and in particular permanent physical accommodation It had doubled its number of students in the ten years prior to 2007 and with regret in March 2007 its board of management decided that the school was full to capacity and that it could no longer justify trying to expand its school by the use of further prefabricated buildings having regard to the standard of education it hoped to provide the welfare of students and teachers alike and the suitability of the accommodation within the school for the proper provision of education Having regard to the school s special relationship with St Peter and Paul s Junior School with whom it had been associated for well in excess of 100 years and which was in effect its feeder school it decided to implement a policy whereby it would take in only students from St Peter and Paul s for a period of four years in the hope that it might thereby be in a position to provide for its pupils an acceptable standard of education in an environment which provided adequately for the welfare of pupils and teachers alike The board s decision was made in March 2007 and was notified to the Department in writing Further in keeping with the said decision the school implemented its altered policy with effect from September 2007 as a result of which by February 2008 being the time at which the notice parties applied to have their children enrolled in the school St Molaga s had rejected applications for enrolment from approximately 41 students At that time every class in the school had in excess of 27 pupils including special needs children and the school had not been in a position to keep its average size to that which the Department in Circular 0020 2007 had asked the school to ensure that it would not exceed As of the date of its refusal to enrol C and D the school exceeded the guidance from the Department by 25 students Further St Molaga s had 9 students in excess of the number that would have justified the appointment of a 17th teacher but as it had no spare classroom it was futile to seek to make such an appointment Accordingly the school was operating on a lesser number of teachers than was thought acceptable It had also had the experience in previous years of trying to deliver education to a larger number of students and had found that the school was physically unable to safely or satisfactorily accommodate such numbers With such numbers the Board had concluded that it could not comply with its obligations to deliver a standard of education appropriate to the needs of its students and was concerned that by trying to continue to educate such numbers that it was jeopardising the physical and mental welfare of both students and teachers alike Against such a backdrop the school refused the enrolment of some 41 children who had applied for a place in St Molaga s for the year 2007 2008 prior to refusing similar applications by the children of the notice parties 8 The learned High Court Judge considered the Act of 1998 The role of the State the patron the board of management and the appeals committee were analysed The learned High Court Judge held The Court has not detected any statutory provisions which might encourage it to the view that the legislature intended that the Department or any committee established under the Act would be afforded the right to either make or reverse management decisions lawfully made The Court continued later Of further assistance to the Court in endeavouring to assess the extent of the power vested in a s 29 appeals committee is to look at the problem that the State was seeking to address in enacting that provision The problem which became the subject matter of the appeal in the present case was the acute lack of school places for the rapidly expanding population in the Balbriggan area The Court concludes that it was never intended that the s 29 appeals committee would involve itself in making decisions which were destined to find places for students in local schools This is a problem which is addressed by s 27 of the Education Welfare Act 2000 Under that legislation the National Education Welfare Board was established and charged with making all reasonable efforts to find a school place for a child refused enrolment in another recognised school 9 The

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  • the manner in which the learned trial judge proceeded The appellant refers under this heading to the transcript of day 10 at pages 55 56 and 101 there is one intervention by the learned trial judge in those pages of the transcript at page 101 The appellant stated then Mr Sanfey refers to the fact that there was a failure to plead matters relating to declarations and that any of the statutory instruments are ultra vires If your Lordship goes to paragraph 2 of the Endorsement of Claim you will see that the Bovine TB Eradication Scheme is still there that it is ultra vires the Diseases of Animals Act The learned trial judge responded That is an assertion The learned trial judge correctly described the appellant s pleading as an assertion It was not evidence She was endeavouring to assist the appellant I can see nothing wrong in the intervention iv Failure to strike out the defence for failure to make proper discovery During the course of the trial it emerged that the defendants discovery had been incomplete Additional discovery was made on the 8th day of trial The appellant contends that he applied to have the defence struck out for failure to make proper discovery Having carefully perused the transcript at the references furnished by the appellant no such application is to be found In any event such application is a matter for the learned trial judge to deal with in her discretion and I would not interfere with the exercise of that discretion in this case v The learned trial judge attacked the appellant s character and integrity The appellant refers to three passages in the transcript Firstly on day 5 of the hearing the appellant was cross examining the defendants witness Mr O Reilly The learned trial judge intervened as follows You are going around in circles Mr Rooney and you are being deliberately obstructive I think or you are deliberately obfuscating The answer Mr O Reilly gave to your question as to why you did not see the whole file was he told us what the general policy is he was talking about general policy he was not specifically relating to your file The learned trial judge was directing the cross examination to the evidence given by the witness and she was fully entitled so to do in the context of the appellant s cross examination of Mr O Reilly which spread across days 5 6 and 7 of the hearing From the transcript it is difficult to ascertain the relevance of a great deal of the cross examination I am satisfied from a perusal of the transcript that the learned trial judge s intervention was fully justified Certainly it did not inhibit the appellant in pursuing his cross examination with considerable gusto and at great length Considerably greater latitude was extended to the appellant than would be extended to counsel in the like circumstances The second objection relates to transcript of day 7 at pages 136 and 137 The appellant once again raised the issue of an amendment to his pleadings to include a prayer for declaratory relief The learned trial judge remarked that the appellant was wasting time and asked him to get on with his cross examination of Mr O Reilly The learned trial judge then refused an application by the appellant to deal with the Sheehy Report which concerned EU funding of the Bovine TB Eradication Scheme on the basis that it was not relevant to the period with which the appellant s claim was concerned The appellant said he would not accept the learned trial judge s ruling Having carefully considered the transcript I am satisfied that the learned trial judge both in relation to the amendment of pleadings and to the introduction of the Sheehy Report was correct I do not see that the learned judge s comments in relation to these applications could in any way be considered as reflecting on the appellant s character and integrity The third matter raised occurred on Day 9 when Mr O Reilly was recalled as a witness The learned trial judge had already made clear to the appellant the matters which could be canvassed with him on cross examination The appellant sought to go outside those matters When he sought to do so the learned trial judge said You are not getting another bite at that particular cherry Mr Rooney These witnesses were recalled because of deficiencies in the Department s discovery You were asked to highlight the documentation which was material and should have been discovered I have allowed the witnesses to be recalled and I have allowed you to cross examine them in relation to the discovery issue and I made it clear that we were going to stay within the parameters of this you are straying outside it and I am not going to allow it Again I do not see how this intervention by the learned trial judge could in any way constitute an attack upon the character and integrity of the appellant vi In her judgment the learned trial judge omitted reference to evidence damning the respondents defence to the action In relation to this complaint it is sufficient to say that having considered the transcript in its entirety I am satisfied that the learned trial judge in her judgment as she was entitled to do recited the portions of the evidence relevant to the issues arising in the action and which she had to determine There is no requirement and indeed it would be inappropriate in the course of her judgment to recite in full the evidence whether relevant or irrelevant and whether accepted or not It is sufficient if the learned trial judge recites that evidence which is material to the findings of fact and law which she makes on the issues which she has to decide The learned trial judge in an exemplary manner in her lengthy and detailed judgment did this 3 The learned trial judge failed to take into account the appellant s written submissions It is quite clear from a perusal of the transcript and the appellant s submissions that the learned trial judge fully took into account and considered those parts of the appellant submissions relevant to the issues which she had to decide The appellant s real complaint is that his submissions were not accepted 4 The learned trial judge failed to acknowledge the fact that evidence was before her conclusive of the fact that the test of 4th to 7th May 1993 was an illegal test The assessment of evidence and the acceptance or rejection of any part of the evidence are matters for the trial judge Unlike this court the High Court has the opportunity to observe witnesses and their demeanour while giving evidence If there is evidence before a trial judge upon which he can base his decision this court will not interfere There was such evidence in this case 5 The learned trial judge in her judgment misrepresented facts in ten instances It is the function of the learned trial judge to make findings of fact upon the evidence before her If there is evidence to support a finding of fact this court will not interfere with the same However the nub of the complaint made by the appellant is that the learned trial judge in her judgment did not recite parts of the evidence which he considers to be favourable to him There was no obligation on the learned trial judge to recite evidence which she did not consider relevant to the issues before her or which she did not accept I do not propose to set out in extenso the passages of evidence which in the appellant s opinion ought to have been included in the judgment However having regard to the transcript as a whole and to the issues which were before the learned trial judge I am satisfied that in each of the ten instances it was neither necessary nor appropriate that the passages of evidence the exclusion of which from the judgment is the basis of this complaint were either necessary or appropriate to be included in the judgment 6 The learned trial judge made findings of fact which she was not entitled to make on the evidence The appellant cites ten findings of fact in relation to this complaint i Finding that the declaration of plaintiff s holding on 7th April 1993 was a valid declaration The learned trial judge clearly and correctly sets out in her judgment the requirements of the 1989 Order for the declaration of a holding to be a restricted holding and applied that law to the facts as found There was clear evidence which if accepted supports the finding that the declaration was a valid declaration This court will not interfere with findings of fact which are supported by evidence ii The learned trial judge was not entitled to make a finding that the contentious animal had reacted positively to the tuberculin which had been injected on the 4th May 1993 and that Mr Hand was correct in classifying it on the 7th May 1993 as a reactor within the meaning of the 1989 Order On a perusal of the transcript I am satisfied that there was evidence to support the finding of fact iii The learned trial judge was not entitled to find that the appellant refused to allow Mr Hand to punch and tag the reactor There was no evidence that the animal was a reactor Again on a perusal of the transcript it is clear that there was evidence before the learned trial judge which if accepted supported the findings It was unnecessary that the contentious animal should be a reactor it was only necessary that Mr Hand a veterinary inspector believed or suspected that the animal was infected or was capable of infecting other animals There was evidence to support the existence of such a belief or suspicion and the learned trial judge was entitled to so find This court will not interfere with findings of fact by the learned trial judge where the same are supported by evidence iv The learned trial judge was not entitled to find that Mr Hand and Mr McPhillips were on the plaintiff s holding lawfully when conducting the May 1993 test In her judgment the learned trial judge clearly outlined the relevant statutory provisions and the facts proved in evidence necessary to support the finding that Mr Hand and Mr McPhillips were on the plaintiff s holding lawfully Perusal of the transcript discloses evidence to support the finding made v The learned trial judge was not entitled to make a finding that the decision of Monaghan District Court on the 29th May 1995 or the test completed on 3rd June and 12th August 1995 did not alter the status of the contentious animal as a reactor As a matter of law the determination of the District Court at Monaghan and the evidence before that court were not binding on the High Court Further the proceedings before the District Court were conducted on the basis of the criminal standard of proof as opposed to the civil standard of proof applicable in the High Court vi The learned trial judge was not entitled to make any finding that the appellant refused to allow Mr Patton to conduct a herd test Before the learned trial judge there was the clear evidence of Mr Patton as to what occurred Accepting that evidence the learned trial judge was fully entitled to make the finding of fact about which the appellant complains vii The learned trial judge was not entitled to make a finding about the diseased status of the contentious animal The appellant contends that there was overwhelming evidence that the defendants committed perjury in stating that they genuinely believed the contentious animal was a biological reactor after the events of Monaghan District Court It is a matter for the learned trial judge to accept one version of events rather than the other A state of mind is a fact and where there is evidence as to a state of mind the learned judge can accept or reject that Once there is evidence upon which the learned trial judge can make a finding of fact this court will not interfere with that finding ix The learned trial judge was not entitled to make a finding that there was Bovine TB in the contentious animal in August 1994 The appellant contends that the learned trial judge was not entitled to make a finding that the contentious animal was a reactor in the first place and therefore was incorrect in finding that it remained a reactor until it was put down I have already dealt with the finding by the learned trial judge that the animal was a reactor for the purposes of the scheme as a result of the test on the 7th May 1993 On the basis of this primary finding of fact the trial judge was entitled to draw inferences and in particular an inference that it remained a reactor The evidence discloses that the appellant refused on a number of occasions to permit the carrying out of further tests which could have clarified whether the animal was or was not a reactor A postmortem on the animal could also have established this The appellant had a post mortem carried out by his own veterinary surgeon and because of the removal of parts it was not possible for the defendants to carry out a postmortem which would have clarified the position On the evidence before her the learned trial judge was entitled to infer in all the circumstances that the contentious animal being a reactor on the 7th May 1993 retained that status for the purposes of the scheme x The learned trial judge was not entitled to absolve the defendants from their reprehensible conduct towards the plaintiff The issue before the court was the legality or otherwise of the defendants conduct be it reprehensible or otherwise The learned trial judge duly made findings on the basis of the evidence before her On the evidence before her the learned trial judge was entitled to find that the respondents were not activated by mala fides In each of the instances set out above in which the learned trial judge s findings of fact and inferences from primary findings of fact are challenged it is important to have regard to the role of this court This is set out in Hay v O Grady 1992 I R 210 as follows The role of this court in my view may be stated as follows 1 An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but also observes the manner in which it is given and the demeanour of those giving it The arid pages of a transcript seldom reflect the atmosphere of a trial 2 If the findings of fact made by the trial judge are supported by credible evidence this court is bound by those findings however voluminous and apparently weighty the testimony against them The truth is not the monopoly of any majority 3 Inferences of fact are drawn in most trials it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact see the judgment of Holmes L J in The S S Gairloch Aberdeen Glen Line Steamship Company v Macken 1899 2 I R 1 cited by O Higgins C J in The People Director of Public Prosecutions v Madden 1977 I R 336 at p 339 I do not accept that this is always necessarily so It may be that the demeanour of a witness in giving evidence will itself lead to an appropriate inference which an appellate court would not draw In my judgment an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge In the drawing of inferences from circumstantial evidence an appellate Tribunal is in as good a position as a trial judge In applying this approach to the complaints made by the appellant in relation to the learned trial judge s findings of fact and inferences therefrom I am satisfied that in each of the ten instances raised above there was before the learned trial judge evidence which if believed justified the finding of fact and inferences from the same As to the third ground in the notice of appeal I would say this The learned trial judge displayed indulgence towards the appellant in the manner in which she conducted the hearing of this case in the High Court The case took an inordinate amount of time and for the defendants caused far greater expense than would have been incurred than if the case had been conducted by counsel The efficient progress of the case was not assisted by the aggressive and truculent attitude adopted by the appellant to counsel for the respondents the witnesses called by the respondents and not least the learned trial judge Nonetheless the learned trial judge gave every consideration to the appellant consistent with maintaining fairness to the respondents A trial must be fair to both parties I can find nothing in the transcript to support the allegation that the trial was in any way unfair to the appellant Indeed had the respondents complained of unfairness and oppression to them in the manner in which the appellant conducted the proceedings from their institution such complaint would not be unfounded I have attempted to deal seriatim with all the issues raised by the appellant in the written submissions upon which he relied before this court and where the thrust of the submissions was unclear I have given them the construction most favourable to the appellant I did this on the basis that he appears before the court as a lay litigant and notwithstanding that he is a qualified barrister at law I would dismiss the appeal Rooney v The Minister for Agriculture Ors THE SUPREME COURT Appeal No 387 of 2004 Hardiman J Macken J Finnegan J BETWEEN JOHN ROONEY PLAINTIFF APPELLANT and THE MINISTER FOR AGRICULTURE FOOD AND FORESTRY THE MINISTER FOR FINANCE IRELAND AND THE ATTORNEY GENERAL DEFENDANTS RESPONDENTS Judgment of Mr Justice Finnegan delivered on the 18th day of November 2010 This appeal concerns one of several sets of proceedings instituted by the appellant which concern the Bovine T B Eradication Scheme operated by the Minister for Agriculture Food and Forestry the Minister In short in these proceedings he claims that the scheme as operated infringes the Constitution is contrary to Directive 64 432 EEC as amended Directive 77 391 EEC and the European Convention for the Protection Human Rights and Fundamental Freedoms Further he claims that the scheme operated under the Bovine Tuberculosis Attestation of the State and General Provisions Order 1989 was operated contrary to the objectives of the Diseases of Animals Act 1966 and was ultra vires the Diseases of Animals act 1966 Central to these complaints is the extra statutory scheme of compensation operated by the Minister for Agriculture Food and Forestry in place of the statutory scheme provided for in section 22 of the Act of 1966 In addition he claims that his cattle herd had been unlawfully restricted and in that regard alleges mala fides and claims damages and he also claims damages for breach of his constitutional right to privacy While the applicant appeared before the High Court and before this court as a personal litigant as he did in several other actions which he instituted against the Minister he is not a lay litigant as ordinarily understood having qualified in 2000 as a barrister in Northern Ireland and was subsequently admitted in this jurisdiction The action was heard before Laffoy J over ten days in May and June 2004 The judgment of the High Court ran to fifty nine pages and for the reasons therein clearly set out the appellant s claims were dismissed Having regard to the grounds of appeal relied upon by the appellant and the course taken by the appeal before this court it is unnecessary to set out in greater detail the appellant s claims For the like reason it is unnecessary to recite the evidence before the High Court the submissions of the parties to the High Court or the judgment of the learned trial judge save where that is required for the purposes of this judgment The Notice of Appeal The grounds of appeal are as follows 1 The proceedings before the High Court on the 11th 12th 13th 14th 18th 19th 20th and 21st days of May 2004 and the 9th and 10th days of June 2004 were grossly unfair to the plaintiff appellant a Ms Justice Laffoy was biased against the plaintiff appellant in that i Ms Justice Laffoy engaged in disgraceful attacks upon the plaintiff appellant s character and integrity ii Ms Justice Laffoy belittled the plaintiff appellant s EU Citizenship Rights in Ms Justice Laffoy s in obstructing meaningful argument in respect of the necessity to have issues arising out of the impact of EU law on these proceedings referred to the Court of Justice of the European Communities under Article 234 of the EC Treaty iii Ms Justice Laffoy did not approach the proceedings with an open mind iv Ms Justice Laffoy refused to consider an amendment to the pleadings to give greater effect to the justice of the plaintiff appellant s claim v Ms Justice Laffoy refused to heed consider or entertain applications for rulings made by the plaintiff appellant during the proceedings vi Ms Justice Laffoy s eyes and ears were closed to the evidence before Ms Justice Laffoy justifying plaintiff s appellant s claims vii Ms Justice Laffoy s eyes and ears were closed to the evidence before Ms Justice Laffoy fatal to defendant s respondent s denial of plaintiff appellant s claim viii Ms Justice Laffoy refused to receive relevant evidence by plaintiff further justifying plaintiff appellant s claims 2 The judgment of Ms Justice Laffoy delivered on the 13th day of July 2004 is grossly unfair in that a It is wrong in fact and in law b It is not the product of reasonableness or fair play c It avoids mention of and as a consequence conceals the import of evidence before Ms Justice Laffoy justifying the plaintiff appellant s claim in this action d It avoids mention of and as a consequence conceals the import of evidence by plaintiff appellant justifying plaintiff appellant s claims in this action e It avoids mention of and as a consequence conceals the import of legal precedent and legal submissions by plaintiff appellant justifying plaintiff appellant s claims in this action f It fails to vindicate plaintiff appellant s access to justice the right to one s day in court by ignoring the fundamental tenet of justice that to hear a litigant should involve truly listening to that party Ms Justice Laffoy s judgment firstly fails to demonstrate that plaintiff appellant s arguments were seriously considered secondly fails to demonstrate that the scales of justice were tipped by the weight of reason not prejudice or caprice 3 Ms Justice Laffoy s utterances and treatment of the plaintiff appellant combined to deny plaintiff appellant a fair and impartial hearing contrary to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms Proceedings in the High Court At the commencement of the proceedings in the High Court the appellant accepted that he could not re litigate matters raised by him in two previous sets of proceedings and that he could not do so as he sought to do by annexing two statements of claim from such proceedings to the statement of claim in the present proceedings He likewise accepted that he could not litigate a third set of High Court proceedings the High Court Record No 2744P 1997 John Rooney Plaintiff and Liam Fitzgerald Patrick Vincent O Reilly and Patrick Joseph Hand Defendants which concern the alleged unlawful restriction of his herd and mala fides in relation to the same those issues being more properly dealt with in those proceedings In her judgment the learned trial judge made a number of findings of fact as follows 1 The declaration of the appellant s holding to be a restricted holding pursuant to Article 12 of the 1989 Order on 7th April 1993 was a valid declaration On the basis of the evidence of Mr O Reilly Senior Veterinary Officer there were reasonable grounds for suspecting that Bovine TB was present in the appellant s herd In her judgment the learned trial judge detailed the evidence which gave rise to the reasonable suspicion 2 An animal of the appellant in the opinion of Mr Hand the Minister s veterinary inspector presented as a reactor on the 7th May 1993 The animal was referred to by the learned trial judge as the contentious animal and will be so referred to hereinafter To be classified as a reactor the test is whether a veterinary inspector believes or suspects that the animal is affected or is capable of infecting other animals The contentious animal had reacted to tuberculin and Mr Hand was correct to classify it as a reactor 3 The appellant refused to allow Mr Hand to punch and tag the reactor 4 That Mr Hand and Mr McPhillips were on the plaintiff s lands lawfully when the test of 7th May 1993 was conducted 5 The decision of Monaghan District Court of 29th May 1995 and clear tests completed on the 3rd June 1995 and 12th August 1995 did not alter the status of the contentious animal The appellant was charged with refusing to permit the punching and tagging of the animal considered to be a reactor the charges were dismissed 6 The appellant refused to allow Mr Patten to conduct a herd test on the 25th October 1995 7 No proof was adduced of the diseased status of the reactor prior to it being put down The District Veterinary Officer Ballybay was unable to perform a post mortem on the animal as it had been opened up and parts removed Mr Pottie a Veterinary Surgeon who carried out a post mortem on the animal at the request of the appellant was not called to give evidence The learned trial judge ruled that Mr Pottie s report was of no probative value 8 The tests conducted in May and June 1996 were necessary as a pre requisite to the de restriction of the appellant s herd and there was no delay in conducting those tests 9 While there was no evidence of Bovine Tuberculosis in the appellant s herd during the period of restriction the procedures and sanctions to which the plaintiff s holding and herd were subjected are not predicated on the existence of Bovine Tuberculosis in the herd 10 Neither the Minister nor any of his officials were motivated by malice or bad faith towards the appellant The learned trial judge went on to deal with the plaintiff s challenge to the scheme She noted that the respondents did not seek to rely on res judicata but sought to answer each and every complaint of the appellant The learned trial judge identified the net issue arising in the proceedings as whether the appellant had established that between 1993 and 1996 the scheme as operated by the Minister was invalid in one or more of the manners asserted by the appellant so as to give rise to an actionable wrong on the part of the Minister which would sound in damages The learned trial judge held that in essence the case sought to be made by the plaintiff in these proceedings that the scheme as operated is ultra vires the Act of 1966 was the same as the case he made in Rooney v The Minister for Agriculture and Food and Ors 1991 2 I R 539 The Supreme Court there held that the Minister was not obliged to operate the provisions of section 58 of the Act of 1996 and that accordingly the 1989 Order is not ultra vires the Act of 1996 on the grounds alleged by the appellant At the time the acts and omissions on the part of the respondents of which the appellant complains in these proceedings and which occurred between 1993 and 1996 the Supreme Court had given its imprimatur to a similar scheme operated in the previous decade When the present proceedings were initiated the High Court in Grennan v The Minister for Agriculture Food and Forestry unreported the High Court 4th October 1995 had considered the implementation of the scheme in the period with which the present proceedings are concerned Murphy J there held that the failure of the applicant to allow tests to be carried out on his herd under the scheme otherwise than in accordance with compensation under the Act of 1966 amounted to a refusal to permit his herd to be tested and gave rise to a power to issue a restriction notice under Article 12 of the 1989 Order Having regard to the foregoing she found the appellant s allegation of mala fides unsustainable The appellant also submitted that he had a legitimate expectation that the statutory compensation scheme would be implemented and as it had not that he had an entitlement to damages The learned trial judge rejected this submission on the basis that the stance adopted by the appellant was at variance with the legal position as laid down by the Supreme Court in an action in which he was plaintiff and accordingly that to allow the submission would be to permit a collateral attack on the judgment of the Supreme Court The learned trial judge dealt with a submission that the operation of the scheme in relation to compensation on an extra statutory basis was unconstitutional The appellant claimed to be entitled to the live market value of an animal destroyed rather than an ex gratia sum fixed by the Minister The learned trial judge considered and agreed with the approach of Murphy J in Grennan v Minister for Agriculture Food and Forestry and she held that the scheme was an entirely reasonable method of reconciling the interest of a herd owner with a diseased or suspected diseased animal and the requirement of the common good in preventing the further spread of disease and that the scheme accorded with the Constitution In relation to the submission that the scheme was contrary to the European Convention on Human Rights and Fundamental Freedoms the learned trial judge held that the Convention was not part of domestic law of the State at the relevant time and that an action for damages did not lie for an alleged breach of rights under the same between 1993 and 1996 The learned trial judge characterised the appellant s position as follows The Minister s officials acted on the authority of the Act of 1966 and the 1989 Order and the question of compensating the plaintiff for a slaughtered animal never arose because of the conduct of the plaintiff He refused the compensation which was on offer if he slaughtered the contentious animal She went on to deal further with the issue as follows For the purpose of considering the defendant s argument I will assume that there has been a failure to implement Article 3 2 into national law and that the first and second criteria for State liability laid down in Francovich Dillenkofer are complied with Looked at in the abstract the third condition would be fulfilled if as a result of a failure to transpose into national law the obligation to ensure that a herd owner is appropriately compensated whatever on its proper construction that expression entails for the slaughter of an animal under a Disease Eradication Plan mandated by Directive 78 52 EEC a herd owner received no compensation or less than appropriate compensation for a slaughtered animal thereby incurring loss That is not what happened in the plaintiff s case between 1993 and 1996 What happened was that the plaintiff s herd was lawfully restricted under Irish law Shortly thereafter when the contentious animal was declared to be a reactor despite being persistently urged to do so the plaintiff refused to have the animal slaughtered and to initiate the process which would have led to de restriction The plaintiff claims damages for the losses he alleges flowed from the restriction of his herd between 1993 and 1996 That situation was brought about by the plaintiff s own conduct It is no answer to the defendants contention that the plaintiff is not entitled to recover because he was the author of his own misfortunate that but for the non implementation of Article 3 2 the plaintiff s conduct would have been different The extent of reparation to which an injured party may be entitled for any breach of Article 3 2 in this jurisdiction is governed by Irish law and as a matter of community law as laid down in Dillenkofer an Irish court is entitled to enquire whether the plaintiff had taken reasonable care to avoid loss or damage or to limit its extent The losses which the plaintiff alleges he incurred between 1993 and 1996 could have been wholly avoided if the plaintiff had complied with the provisions of the 1989 Order in relation to herd restriction herd testing and the slaughter of the reactors to which he professes having no objection Accordingly the plaintiff has not established that there is a causal link between the losses in respect of which he claims damages and the State s obligation to implement Article 3 2 Further the appellant failed to produce any evidence that there would be a difference between the carcass value and the reactor grant on the one hand and appropriate compensation within the meaning of Article 3 2 on the other hand The final issue to arise on the pleadings was the claim relating to the passing of private and confidential sensitive constitutional communications This concerned a letter written by the appellant on the 8th March 1994 to the President of Ireland the Ceann Comhairle of the Dáil the Taoiseach and the Chief Justice in which he made specific complaints against six former and serving judges of the Superior Courts alleging improper exercise of their judicial functions That letter was discovered by the defendants in the present proceedings The learned trial judge held that it was properly discovered and that no right to privacy could attach to the appellant in relation to the same Proceedings before the Supreme Court In opening the proceedings the appellant withdrew the allegation of bias against Laffoy J Accordingly the several matters listed under that heading at 1 in the grounds of appeal were not pursued Nonetheless it was appropriate for the purposes of the appeal to consider the transcript of the proceedings in the High Court Having considered the transcript I am satisfied that the allegation of bias could not be supported and that it was appropriate that the appellant did not persist with this ground The remaining grounds 2 and 3 cited above are couched in the most general terms However the appellant s written submission set out specific complaints as to the manner in which the learned trial judge conducted the trial and dealt with various applications made by the appellant The respondents in their written submissions dealt with each complaint without objection as to whether or not it was within the grounds of appeal In dealing with each individual complaint this court has

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  • the woods Again the logic of cervical cytology is that it is a procedure that is advised and done in a timely fashion the patient then has their disease treated at an early stage He concluded his evidence by confirming his conclusion that The liability of the GP relates only to failure to adequately follow up smear results so this did sic probably contributed to the emergence of the clinical condition that led to what ultimately proved to be excessive surgery In addition to all this evidence the Plaintiff s witnesses also gave some support to the argument being advanced by counsel for the first named Defendant that the ten years of abnormal reports which had not been reported or followed up and for which the third and fourth named Defendants were responsible had contributed to the difficulty of the position confronting the first named Defendant In the light of this evidence it might be somewhat surprising that the application was made let alone succeeded that there was no sufficient prima facie case against the third and fourth named Defendants That application however depended almost entirely on the interpretation of a passage in the cross examinations of Professor Bonnar and more particularly Dr Murphy conducted on behalf of the third named Defendant GP and supported by the fourth named Defendant The thesis advanced on behalf of these Defendants was derived in part from a report from a consultant pathologist Professor Mary Leader prepared on behalf of the fourth named Defendant This report stated that it did not appear that the Plaintiff had suffered any harm as a result of the failure to inform her of the outcome of the smear test because in effect her condition had not deteriorated between 1986 and 1996 In summary therefore whilst the GP should have informed the patient of the results of these smears and recommended a colposcopy at that time the patient from a cervical abnormality viewpoint did not suffer any harm as a consequence of that The decision to perform a Wertheim s hysterectomy appears to have been made on clinical and radiological suspicions of invasive carcinoma It would be conjecture to attempt to decide whether these suspicious features would have been present in 1991 or 1993 emphasis added This statement falls very far short of the determination which in any event is essentially a matter of logic and law as to whether there has been any damage caused to the Plaintiff by reason of the failure to notify her and follow up on the smear test results Critically the features which led the first named Defendant to conduct the Wertheim Meigs hysterectomy the suspicion of Adeno carcinoma the report of post coital bleeding and the ten years of abnormal reports were by definition not present at any earlier stage Furthermore the fact that this cervical abnormality had not in fact altered did not by any means mean that the legal or factual position was not different The Plaintiff s condition now appeared different to the first named Defendant so that he considered a Wertheim Meigs hysterectomy to be indicated Professor Leader repeated in a number of reports her opinion that the delay had not led to an altered prognosis for the patient but that is merely another way of stating that the Plaintiff did not contract cancer or any other illness Significantly Professor Leader does not appear to have had available to her the reports of Professor Bonnar Dr Murphy and Professor Bradley and of course because the Plaintiff s claim against the fourth named Defendant was dismissed she herself never came to give evidence and be cross examined There is no doubt that if the conservative treatment which the Plaintiff contended ought to have been applied between 1986 onwards had been carried out in 1996 then the Plaintiff s only complaint would be that she had suffered from a condition for ten years longer than she should have Similarly if the Plaintiff s case against the first named Defendant had succeeded and it had been established that he ought not to have conducted a hysterectomy in 1996 then that would have exculpated the third and fourth named Defendants from responsibility for anything other than having a condition which ought to have been treated earlier But if the first named Defendant s conduct was reasonable and therefore must I think be considered to be reasonably foreseeable then the failure to act appropriately in 1986 1987 1991 or 1993 could be said to have caused the situation to arise where a hysterectomy was carried out which could have been avoided It was not an answer to this line of argument to say even if correctly that her medical condition had not altered in the sense that the subsequent biopsy showed she did not have cancer Doctor Murphy was cross examined by counsel on behalf of the general practitioner In this regard it must be recalled that the Plaintiff s case at this stage was still that the first named Defendant ought to have adopted the conservative option even in 1996 Therefore at Day 5 question 417 counsel asked If Dr Winters is guilty of the delay would you agree with me that notwithstanding that delay A the conservative option as you have described there should still have been done Doctor Murphy answered A should still have been done The patient should have been referred for colposcopy At question 419 counsel asked I think you are agreeing with me that any alleged blame lay on the part of Dr Winters between 1991 and March 1993 did not mean that A was no longer available Doctor Murphy s answer was A Yes It is a phraseology I am uncomfortable with but I think we are talking about he same thing Q 420 I think so So I think you are agreeing with me A yes It is worth pausing at this point to observe that so far Dr Murphy has agreed that the delay between 1991 and 1993 and by extension any delays from 1986 did not mean that the conservative option was no longer available This was interlinked to the Plaintiff s case against the first named Defendant If therefore the Plaintiff succeeded against the first named Defendant then this evidence would significantly reduce any potential liability of the third and fourth named Defendants notwithstanding their clear negligence in failing to follow up on the abnormal reports But this evidence was clearly given in a context which assumed that the first Defendant ought to have taken the conservative option even in 1996 The trial judge however interjected at that point in an echo of the concerns he had expressed on Day 1 He said In essence I think what Mr Meenan is putting to you doctor is that if there was a culpable delay on the part of Dr Winters there was no adverse consequence that flowed from that culpable delay A That is true In essence the Defendants application for a non suit rested on that single answer It seems that what the trial judge putting to the consultant surgeon was at least on one view and probably understood by the trial judge as meaning adverse consequences in the legal sense of any loss giving rise to a claim It is not so clear that this was what counsel was putting to the doctor Furthermore any such conclusion would run directly contrary to the clear evidence that had already been given by Dr Murphy and Professor Bonnar It seems that Dr Murphy may have been referring to the fact that there were no adverse medical consequences in the sense that her condition had not deteriorated At very best his answer was ambiguous It did not address the possibility that the Court would decide that the first Defendant had acted reasonably in adopting the radical option But in my view whatever interpretation is put on this answer it could not reasonably be said that it completely negatived the evidence already given by Dr Murphy Even excluding Dr Murphy s evidence there was still the evidence given by Professors Bonnar and Bradley Thus even on the most favourable interpretation of Dr Murphy s evidence from the third and fourth Defendant s point of view it still could not be said that there was no evidence on which a Court could conclude the Defendants had been negligent However the application for a non suit relied almost entirely on this single passage in Dr Murphy s cross examination The Defendants did make reference to the evidence of Professor Bonnar in cross examination on Day 4 but this if anything was even less compelling Professor Leader s report was put to Professor Bonnar including the statement The patient has shown no definite progression of disease between 1991 and 1995 Professor Bonnar was asked to agree with that and said There is no progression of the disease from the precancer I agree with you then that the two cytology reports are different and the recommendation on the slides are different One is saying colposcopy the other is saying colposcopy and D C because there is an Adeno carcinoma suspected in the 1995 one So I am not saying this is a progression I am simply saying we have got a different situation That it is certainly a more serious one for the patient Counsel then asked a further question Leaving aside that refinement you agree with Professor Leader that the prognosis and treatment for the condition which Mrs Schuit was afflicted with in 1995 was the same as it would have been in 1991 I pause to observe that it is not possible to leave aside what was described as the refinement In truth Professor Bonnar s answer encapsulated the two key features of this issue First that all that could be said was that the disease had not progressed That in itself was not determinative of the legal issue Second it could not be said that the factual position in 1995 facing Dr Mylotte was the same as that in 1986 since by 1995 there was evidence of a suspicion of Adeno carcinoma It was put to Professor Bonnar that Professor Leader had said that the treatment of CIN II and CIN III is cured by local removal of the abnormality generally by a LLETZ biopsy Again I pause to observe that this in fact makes the Defendants case against the third and fourth named Defendants in the events which transpired Professor Bonnar agreed He was then asked I just want to be clear about one thing Do you accept that in terms of the prognosis and treatment of Mrs Schuit that her condition in 1991 and 1995 the prognosis and treatment would have been the same A They would have been the same if the follow up management as recommended in the report of 1995 had been carried out At question 352 Professor Bonnar agreed The evidence we have is that it has not progressed There was no invasive cancer detected in the uterus cervix or vagina It appears to me to be quite clear that this evidence could not possibly or reasonably be interpreted as resiling from the evidence Professor Bonnar had given in his evidence in chief set out above Instead because of both the medical and factual complexity of the case attention was not necessarily focussed in anyone s mind on the multiple possibilities and contingencies which arose in the case Once again however even taking this evidence at its height from the Defendant s point of view it could not in my view reasonably be said in the light of all the evidence that there was at that point no evidence from which a Court could conclude that the third and fourth named Defendants had been negligent and that such negligence had caused loss and damage to the Plaintiff Finally it should be observed that the Defendants were not able to point to any passage in relation to the evidence of Professor Bradley In addition as was pointed out by counsel for the Plaintiff when the first named Defendant came to give evidence on Day 8 he did give some support to the Plaintiff s case against the fourth named Defendant At question 271 he said She was subjected to treatment that might not have been considered if the glandular atypia was not in a smear test That glandular atypia only emerged in the 1995 test At question 317 he said As I said I thought she had about a ten per cent chance of there being an invasive cancer there And that ten per cent was influenced by the nine or ten years of inaction Not hugely but it was influenced by it Fundamentally it seems clear that this was very far removed from the type of case in which it could be said that the Plaintiff s case against the Defendants was flimsy or had been destroyed under cross examination so that it could be said that there was no basis upon which the case could proceed On the contrary there was a significant body of evidence supporting the Plaintiff s case It appears that the complications involved in the case meant that the various contingencies were never analysed with sufficient clarity and that the thrust of the case against the first named Defendant tended to overshadow and to some extent distort the case being made against the third and fourth named Defendants While it is regrettable it seems plain to me that the decision to accede to the application and to non suit the Plaintiff was in error It is said by the Defendants however on the authority of Hanafin v Minister for the Environment 1996 2 IR 321 that the trial judge s decision in this regard is a decision to which the principles in Hay v O Grady 1992 1 IR 210 apply and accordingly that if there was evidence upon which the trial judge could come to the conclusion he did the decision should not be disturbed on appeal I cannot agree Hanafin is a case which was very much sui generis and has never been treated as an authority of general application on the principles to be applied on an application for a non suit in personal injuries litigation That case concerned a petition to set aside the outcome of the constitutional referendum and it is not easily compared to simple inter partes litigation Indeed in this Court at least one of the members of the Court considered that the case ought to have proceeded as a form of inquiry rather than litigation inter partes The test in Hay v O Grady is derived from the fact that an appeal Court which does not hear the evidence must give considerable deference to a trial Court s assessment of the cogency and credibility of evidence given to it This follows from the different functions of a trial Court and appeal Court As a result the question for a Court on appeal is essentially a matter of logic was there evidence whatever its apparent credibility or cogency upon which the trial judge could come to the conclusion he or she did The test in Hetherington v Ultra Tyres Services and O Toole v Heavey provides in truth little scope for the application of the principle in Hay v O Grady since it is rare that a Court will proceed to asses the credibility of witnesses at the end of the plaintiff s case While I do not rule out the possibility that a Court could come to the conclusion that the plaintiff s evidence was so wholly incredible that there was no plausible or viable case in most cases the issue is simply a matter of logic is there evidence whatever its relative cogency or strength upon which a Court could conclude that a defendant was liable That exercise is very similar to that set out in Hay v O Grady It does not normally and did not here involve the type of assessment of the cogency or credibility which attracts the rule in Hay v O Grady and accordingly the decision is fully reviewable on appeal In any event when the trial judge acceded to the application of the third and fourth named Defendants he did not do so on the basis of the assessment of the credibility or cogency of any of the evidence Instead on Day 9 page 84 he returned to the fact that he had made it quite clear that at a very early stage of the proceedings that he couldn t see how Dr Winters and the Western Health Board were before him at all At page 108 of the same transcript he delivered the essence of his ruling I am similarly of the view in relation to the evidence against both Dr Winters and the Western Health Board that a prima facie case has not been made out against them insofar as the evidence both of Professor Bonnar and Dr Murphy has been and is to the effect that the approach of Dr Mylotte in this case was inappropriate and that there should have been no question of radical surgery unless and until he had an adverse biopsy histological finding Thus it is apparent that the Court had concluded as a matter of deduction that since the Plaintiff was making the case against Dr Mylotte that he should have adopted the conservative approach in 1996 that any failure to do so at an earlier stage was irrelevant With great respect to the trial judge who was undoubtedly faced with considerable difficulties in this case I am afraid that I consider that this was wrong or at the very least incomplete It is true that if the Plaintiff succeeded against the first named Defendant that would almost completely exculpate the third and fourth named Defendants but what the Court did not consider in this extract was the fact that no such determination had been made Furthermore this reasoning did not address the circumstance which in fact transpired where the Court found that the conduct of the first Defendant was not unreasonable In the circumstances the appeal must be allowed THE SUPREME COURT 118 06 Denham J Finnegan J O Donnell J Between Julia Schuit Plaintiff Appellant and Michael Mylotte First Defendant and David O Keefe Second Defendant and John Winters Third Defendant Respondent and Western Health Board Fourth Defendant Respondent Judgment delivered by O Donnell J on the 18th day of November 2010 In 1996 the Plaintiff then aged 38 underwent a Wertheim Meigs hysterectomy conducted by the first named Defendant This operation is a radical and invasive procedure which involved the removal of her uterus one of her ovaries a portion of her vagina and her pelvic lymph glands This procedure is the appropriate treatment in cases where it is considered the patient is suffering from cervical cancer After the operation a biopsy was carried out which showed that the Plaintiff did not have cancer The first named Defendant told the Plaintiff this and added that had he known this prior to the operation he would not have carried out the hysterectomy Whether on the information available to him the first named Defendant was entitled to come to the view that a Wertheim Meigs hysterectomy was necessary was a central issue in the High Court Initially the Plaintiff who had a good relationship with the first named Defendant had expressed her gratitude that the operation had been carried out When she investigated the matter further however the Plaintiff came to the view that the operation should never have been carried out and that a number of parties were at fault The Plaintiff commenced proceedings against the first named Defendant her surgeon the second named Defendant the radiographer responsible for a CT scan performed shortly before the surgery the third named Defendant her GP who had received reports of smear tests in 1991 and 1993 and the fourth Defendant the health board which maintained the laboratory which had been responsible for those tests and two earlier smear tests carried out on the Plaintiff in 1986 and 1987 These smear tests were central to the case made by the Plaintiff against the Third and Fourth named Defendants For the purposes of this appeal it was accepted that while none of the smear tests up to 1994 had shown the presence of cancer all were abnormal It was also accepted there was evidence that in the light of such results proper practice would have been to inform the patient and then follow up on the report by performing a colposcopy which is a specialised examination of the uterus The Plaintiff was not informed of the results of any of the tests between 1986 and 1994 Accordingly no treatment was afforded to her until the 1996 operation The trial was at hearing for 14 days The first and second named Defendant were represented by the same counsel The third and fourth named Defendants were separately represented There was no notice of indemnity or contribution between any of the Defendants At the close of the Plaintiff s case on Day 7 counsel for the first and second named defendants indicated his intention to make an application for the dismissal of the claim against the second named Defendant accepting that there was a case to answer in respect of the first name Defendant Counsel for the third and fourth named Defendants indicated that they intended to make the same application In each case as was required by the procedure identified in the leading cases of Hetherington v Ultra Tyres Services 1993 2 IR 535 and O Toole v Heavey 1993 2 IR 544 each Defendant informed the Court that if the application was unsuccessful they intended to go into evidence It is accepted that the issue for the Court in those circumstances was whether the Plaintiff had made out a prima facie case against each of the Defendants making the application Furthermore since this was multi party case the procedure required the Defendants to indicate the line they proposed to take in evidence so as to avoid what Finlay CJ described in O Toole v Heavey as the manifest injustice of one defendant being dismissed from the action and the remaining defendant then seeking to avoid liability by making the case in evidence that the party against whom the claim had been dismissed was in truth responsible for the accident At this point the case took an unusual turn Counsel on behalf of the first and second named Defendants indicated that he would be opposing the application on behalf of the other Defendants on the basis that he contended that under s 32 of the Civil Liability Act 1961 he was entitled to present evidence against the other Defendants to show that they and not the first or second Defendants were negligent He stated that My experts will corroborate the evidence already given on behalf of the plaintiff by her experts that the ten year or nine year abnormal cytology without any follow up created an abnormal situation which put great pressure on Dr Mylotte which was listed by Dr Murphy as one of the factors which would have influenced Dr Mylotte The interrelationship between the cases made against the Defendants was already quite complex and this intervention made matters more difficult In the end the trial judge although clearly attracted by the application declined to dismiss the Plaintiff s claim against any of the Defendants partly on the basis of the intervention made on behalf of the first and second named Defendants and also on the basis that the Plaintiff s counsel had urged that it was at least possible that the testimony of the first named Defendant might well assist the Plaintiff as against all the remaining Defendants Accordingly the trial judge refused the application The first named Defendant then gave evidence After he had given his evidence but before the experts had been called who it should be recalled counsel for the first named Defendant had said would support the Plaintiff s case counsel on behalf of the second and third named Defendants renewed their applications for a dismissal of the action against their clients Counsel for the first named Defendant now indicated that he was no longer making any case against the third and fourth named Defendants It was argued that the factors which had prevented the Court from granting a dismissal the possibility the first named Defendant s evidence might assist against the second named Defendant and the indication that the first named Defendant wished to support the Plaintiff s case against the third and fourth named Defendants were no longer present After some further argument the trial Judge acceded to the application and dismissed the Plaintiff s case against the second third and fourth named Defendants The case then proceeded against the first named Defendant alone The trial judge delivered a judgment on the 2nd March 2006 dismissing the Plaintiff s claim against the first named Defendant In a careful judgment the trial judge applied the well known principles set out in Dunne an infant v The National Maternity Hospital and Another 1989 IR 91 and concluded that while there was evidence on behalf of the Plaintiff on which the Court could conclude that the first named Defendant ought to have approached the matter in a more conservative fashion it had not been demonstrated that no obstetrician of like skill acting with ordinary care would have performed the operation carried out by the first named defendant There were in the trial judge s view two bona fide schools of thought on the issue as to whether the first named Defendant acted appropriately in the circumstances presented to him In the result the case was dismissed and the Plaintiff ordered to pay the costs of all Defendants of what was a lengthy trial On this appeal the Plaintiff does not contest the dismissal of the claim against the second named Defendant and furthermore accepts that the trial judge s findings in respect of the first named Defendant were within the province of the trial court and could not realistically be disturbed on appeal The Plaintiff s appeal is confined therefore to an appeal against the trial judge s decision dismissing the Plaintiff s claim against the third and fourth named Defendants which had occurred at or shortly after the close of the Plaintiff s case This appeal is therefore confined to what might appear to be a dry and rather technical issue as to whether or not there was a prima facie case i e whether there was evidence from which the trier of fact could but not necessarily would find that either Defendant was liable There was a high degree of agreement as to what the evidence in this case showed It was accepted that for the purposes of this application there was indeed evidence from which it could be found that both the third and fourth named Defendant had been negligent in failing to act on the abnormal smear tests The issue here was narrower still The question was whether there was evidence from which the Court could conclude that such negligence had caused any loss and damage to the Plaintiff The running of a trial particularly one as hard fought and relatively complex as this is a difficult task and there may be many issues controversies and sources of confusion which loom large during the course of the trial but which may have evaporated by the time the appeal is heard Multi party trials can give rise to particular complexities There may be more than one theory of liability advanced even in respect of an individual defendant There may be different theories of liability as between defendants some of which may be contingent on the view a court may take of certain evidential matters which are in contest in the proceedings themselves The process is an organic one and notwithstanding the degree of structure provided by pleadings the development of a case is fluid and unpredictable The position of the parties as between themselves is rarely absolutely precisely defined and fixed Multiple defendants may be united in attacking the plaintiff s case but thereafter their interests are rarely perfectly aligned Sometimes it may be very clear that they have an active dispute between themselves which is itself the subject of pleadings in notices of indemnity and contribution On other occasions the difference may be more subtle and contingent One fairly standard possibility is that there may be a claim that a defendant will if adjudged liable contend for a contribution or indemnity from the other defendants Another possibility is the case which was asserted at one stage on behalf of the first named Defendant namely that while denying liability one defendant would wish to make the positive case that another defendant was responsible for the injuries to the plaintiff The position a party takes on these issues is often a difficult strategic decision and the position may develop and change depending on the parties assessment of the way the case is running For one defendant to seek to assist the plaintiff s case against the other defendants can be a high risk strategy It certainly risks retaliation so that the remaining defendants fire may be directed at that defendant Unless carried out with perfect precision and some good fortune the end result may be to ensure that all defendants are found liable Defendants thus have difficult tactical decisions to make and the option of an application for a non suit before the potential differences between the defendants becomes patent may be highly attractive The obverse of this calculation is also true From the plaintiff s point of view the most difficult task may be to keep all the aspects of the plaintiff s case alive while under concerted attack from all defendants If a difference in the position of the defendants can be detected then that can be very productive from the plaintiff s point of view Even if the defendants are not actively making a case against each other it is often the case that what might appear to be a weak case on the part of a plaintiff may be significantly strengthened by exploiting the evidence called on behalf of the defendants The application for a non suit can therefore be a critical point in the development of any case While it is undoubtedly easier to address these matters in hindsight it does appear to me that the complexity of this case illustrates the wisdom of the approach taken by McCarthy J in Hetherington v Ultra Tyres Services where he seemed to consider that the appropriate course for the Court to take when it had been indicated particularly in a multi party case that the defendants intended to go into evidence was simply to adjourn the application until all the evidence was heard Furthermore there is much sense in the course which is often adopted on an application for a non suit if the Court is disposed to grant the application it gives its reasons for so doing but if it is concluded that the application should be rejected the Court gives its decision but does not give reasons at that stage because it is considered that it may distort the trial and the prospect of compromise if the Court gives its views on the state of the case at any given stage Here the trial judge did not take that course and instead outlined his views of the case and the relative strength of the application That course may have led to the attempts to address those issues which had defeated the application the attitude of the first Defendant and the possibility that the first Defendant s evidence might give assistance to the Plaintiff s case and then to the renewal of the application on Day 9 This step was unusual particularly since the case on behalf of the first named Defendant had commenced but not concluded and since it had been indicated that the first named Defendant s expert evidence would support the Plaintiff s case at least in part There must have been at least the possibility that those experts could have been persuaded to advance the Plaintiff s case even further The Plaintiff relied on many of these matters in this Appeal However I am reluctant to decide this case on any of the procedural matters or to lay down hard and fast rules as to the approach which should be taken by the High Court in any given case I would reserve for another day therefore whether a non suit application can be made at any time other than the close of the Plaintiff s case or whether once made it can be renewed at any further stage In view of the fact that there is no appeal against the dismissal of the claim against the first named Defendant or indeed the second named Defendant and since this appeal is limited to the question of the existence of a prima facie case against the third and fourth named Defendant it is I believe undesirable to say too much about the merits of the case Since I take the view that there was indeed an error in the dismissal of the claim against the third and fourth named Defendant there may have to be a retrial where the issues between the third and fourth named Defendants may be fought out to conclusion In order however to understand the points which arose in this appeal it is unavoidably necessary to set out at least in broad detail some of the background to the case which should be read subject to the qualification that as between the third and fourth named Defendants this matter is still at the halfway stage and furthermore that the case against the first named Defendant has concluded and accordingly he was not represented in this appeal It does not appear to be in controversy that the Plaintiff suffered from gynaecological difficulties and had attended her doctor on a number of occasions She had also gone for a series of smear tests On the first two occasions in 1986 and 1987 the record of the tests carried out by the laboratory maintained by the fourth named Defendant did not disclose the name of the general practitioner Each of the test results showed a certain abnormality and were all marked PRIORITY The 1986 result showed CIN II which is moderate dyskaryosis being an alteration within the normal arrangement of the cell nucleus The 1987 result showed CIN III being severe dyskaryosis Both reports recommended a colposcopy and biopsy The changes noted did not themselves indicate the presence of cancer and it was not in contest that conservative treatment would have been appropriate It was also not in controversy in this appeal that there was evidence that in the absence of a GP or other referrer to whom results could be sent that the duty on the fourth named Defendant on receipt of an abnormal report such as those received in 1986 or 1987 was to seek to communicate the report and its contents and recommendations to the individual concerned and to follow up upon it Again it is not in contest that at a minimum there was evidence that this was not done In 1991 and 1993 the reports were addressed to the third named Defendant GP In 1991 the report was again marked PRIORTY and read CIN II suggested colposcopy severe cervicitis erosion with moderate dyskaryosis junctional probably V The 1993 report stated blood was present and accordingly the test was unsatisfactory and requested a repeat test It is accepted that there was no evidence that the report was repeated

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  • alleged Accordingly the Supreme Court was prepared to uphold the High Court s decision to prohibit the trial In this case as in the Ludlow case there is an engagement with the facts of the case and a close and searching analysis of the manner in which the absent evidence might affect the trial Even then it is to be noted that in the subsequent case of CD v DPP 2009 IESC 70 Fennelly J observed of McHugh that at this point on reflection I wonder whether even that case could not properly have been left of the basis that it would be unfair to admit evidence of identification from unavailable CCTV footage which would be a matter for the trial judge In the CD case by contrast the Supreme Court refused to prohibit a trial of an incident which was alleged to have occurred in a matter of seconds in a public place and where the Applicant complained that although the gardaí had retained certain video evidence they had not obtained footage from one camera which it was alleged supplied a better angle At paragraph 24 Fennelly J said As has been emphasised many times this type of application must be considered in the context of all the evidence likely to be put forward at the trial The key question whether there is a real risk of an unfair trial cannot be viewed in vacuo evidence Evidence is never perfect Neither the prosecution nor the defence can be assured that all conceivable evidence will be available Having reviewed the jurisprudence Fennelly J concluded that the relief sought was exceptional It follows that the relief of prohibition of a pending trial can only arise exceptionally see DC v DPP 2006 ILRM 348 per Denham J McFarlane v DPP 2008 IESC 7 per Kearns J these were admittedly delay cases However I think the same principle must apply I stated in my dissenting judgment in Dunne v Director of Public Prosecutions 2002 3 IR 305 that it would require something exceptional to persuade a court to intervene and prevent a criminal trial from taking place In my view having considered the decided cases the position has now been reached where it can be said that other than perhaps the very straight forward type of Braddish case it would now require something exceptional to persuade a court to prohibit a trial This in my view is in accordance with principle The point was made in McFarlane v DPP Special Criminal Court 2007 1 IR 134 that the fact that an applicant was unsuccessful in judicial review proceedings did not detract from the power and duty of a court of trial to assess the case developed at the trial At paragraph 34 of his judgment Hardiman J with Murray CJ Geoghegan and Fennelly JJ agreed stated that the court of trial will be able to assess whether there is indeed a prima facie case at the appropriate stage More than that it will be able to assess on the evidence as it actually develops whether there is any unfairness to the applicant incapable of remedy by the trial court for which the prosecution is responsible Its powers in this regard are wholly unaffected by the result of the present applicant This in my view is an important observation The constitutional right the infringement of which is alleged to ground an applicant s entitlement to prohibit a trial is the right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution The manner in which the Constitution contemplates that a fair trial is normally guaranteed is through the trial and if necessary appeal processes of the Courts established under the Constitution The primary onus of ensuring that that right is vindicated lies on the court of trial which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34 It is in my view therefore entirely consistent with the constitutional order to observe that it will only be in exceptional cases that Superior Courts should intervene and prohibit a trial particularly on the basis that evidence is sought to be adduced in the case of video stills or is not available in the case of CCTV evidence itself The modern law is I consider set out and synthesised in a judgment of Fennelly J in Savage v Director of Public Prosecutions 2009 1 IR 185 in a passage with which Hardiman J expressed agreement a It is the duty of the prosecution authorities in particular An Garda Síochána to preserve and maintain all evidence which comes into their possession having a bearing or potential bearing on the issue of guilt or innocence of the accused This duty flows from the unique and investigative role of the police force see Braddish v DPP 2001 3 IR 127 The extent to which that duty extends to seeking out evidential material not in the possession of the gardaí does not arise in the present case but see Dunne v Director of Public Prosecutions 2002 2 IR 305 b The missing evidence in question must be such as to give rise to a real possibility that in its absence the accused will be unable to advance a point material to his defence This is like the garda obligation to retain and preserve evidence to be interpreted in a practical and realistic way and no remote theoretical or fanciful possibility will lead to the prohibition of a trial See Dunne v Director of Public Prosecutions 2002 2 IR 305 at page 323 c The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish the guilt of the accused does not preclude the making of an order of prohibition In Dunne v Director of Public Prosecutions 2002 2 IR 305 the prosecution intended to rely on a confession This did not defeat the applicant s complaint of the failure of the gardaí to take possession of a video tape covering the scene of the robbery d The application is considered in the context of all the evidence likely to be put forward at the trial The court will have regard to the extent to which aspects of the prosecution case are contested In Bowes v Director of Public Prosecutions 2003 2 IR 25 the fact that the motor car in which the applicant was alleged to have been travelling had been lost by the gardaí was insufficient when the applicant did not contest the fact that he was driving it and the charge related to possession of drugs found in the boot of the car In a second applicant s appeal in Bowes the court had regard to the circumstantial character of the prosecution case of dangerous driving In McFarlane v Director of Public Prosecutions 2006 IESC 11 2007 1 IR 134 the existence of photographic evidence of the missing fingerprints was highly material to the complaint that the original items had been lost by the gardaí e The applicant must show by reference to the case to be made by the prosecution in effect the book of evidence how the allegedly missing evidence will affect the fairness of his trial Hardiman J said in McFarlane v Director of Public Prosecutions 2006 IESC 11 2007 1 IR 134 at page 144 that In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent f Whether the applicant through his solicitor or otherwise makes a timely request to the prosecution for access to or an opportunity to have the article issue expertly examined may be highly material In Bowes V Director of Public Prosecutions 2003 2 IR 25 the very belated request was critical to the refusal of relief On the other hand in Dunne v Director of Public Prosecutions 2002 2 IR 305 no request was made until some five months after charge and long after there was any possibility of producing a video tape In that case however Hardiman J stated at page 325 There is a responsibility on a defendant s advisers with their special knowledge and information to request material thought by them to be relevant However a suspect or an accused person will be unable to make a timely request if the gardaí have destroyed or parted with possession of the material Thus they must give consideration to the likely interests of the defence performing against such decisions g The essential question at all times is whether there is a real risk of an unfair trial See Scully v Director of Public Prosecutions 2005 IESC 11 2005 1 IR 242 The court should focus on that issue and not on whose fault it is that the evidence is missing and what the degree of that fault may be See Dunne v Director of Public Prosecutions 2002 3 IR 305 at page 322 Applying these principles to the present case it seems to me clear that this is not a case in which it can be said that the alleged missing evidence is central to the case being made by the prosecution Unlike Braddish and Ludlow the CCTV evidence here is not the basis of the identification of the accused On the contrary there was direct evidence from witnesses placing the accused at the scene Indeed he was arrested there by Garda Enright and his colleague who both witnessed him being abusive to Mr Hamid It can also be said with some justice that the Applicant has wholly failed to engage with the specifics of the case made This is particularly telling in the present case since it is by no means self evident how as a matter of reality the missing evidence could assist the case the accused wished to make It is certainly not for the Court to hypothesise as to what possible version of the case the CCTV s footage might support It is also relevant in my view that the trial court retains the discretion to exclude the still photographs if the court comes to the conclusion that producing them in the absence of the original video evidence would be unfair to the accused This was the course taken by the Circuit Court in the first Braddish trial and which was considered by Fennelly J in CD and is a specific example of the power and indeed duty of the trial court adverted to by this Court in McFarlane That is not to say that this evidence ought to be excluded in this case as Fennelly J observed in CD that is entirely a matter for the trial judge But the fact that such a course is at least open to a trial court is in my view highly relevant to the calculation which this Court is asked to make as to whether or not to grant the exceptional remedy of prohibition Assuming that a trial judge did consider that the admission of the still photographs would be unfair then the exclusion of that evidence would be a situation which was entirely in favour of the accused since the absence of the CCTV evidence would have resulted in the exclusion of part of the prosecution case and therefore and by definition matters thought to be inculpatory of the accused Given the existence of the power to exclude the still photographs it would then be necessary for the accused to speculate that even then the absence of the CCTV evidence could still unfair because the absent footage might nevertheless support a positive case to be made by the accused which would exculpate him On the evidence so far before this Court that is a speculation which can properly be described as both remote and fanciful and the absence of any real engagement of the accused with the facts of this case comes in to even starker relief It is furthermore relevant to this assessment that the evidence of the gardaí as to the steps taken to secure the evidence has not been challenged either by replying affidavit or by cross examination On that uncontested evidence therefore this is not a case of inaction or incompetence on the part of the gardaí Garda Enright sought to copy the CCTV footage He was told that facility was not available That evidence is unchallenged He did obtain what was available at the time in the form of photographic stills When more information was sought the gardaí returned and sought to make a copy but at that time the disk had been overwritten Significantly there was no evidence of the state of technology in 2004 which is the relevant date We do not know if technology was readily available to make copies in the absence of a facility to burn a CD and we do not know how disruptive such process might have been or how soon after the incident it would have been necessary to seek to make such a copy Finally in this regard while the majority decision in Dunne establishes that no clear and definite distinction can be made between those cases in which evidence has been obtained by the gardaí and then mislaid or released and those where the evidence has not been obtained in the first place that does not mean that that distinction is not relevant to the assessment the Court must make The duty to seek out and preserve evidence is one which must on all the authorities be interpreted realistically In that context the fact the gardaí have never had the particular evidence in their possession but made efforts to obtain it is relevant in the assessment of the case made To adopt the words of Geoghegan J in Mitchell it would in my view be going too far to prohibit this trial on the grounds the gardaí ought to have taken some unspecified steps at an unspecified time to secure more by way of evidence than Garda Enright had Therefore while there is no doubt that the Applicant s solicitors acted promptly in seeking the CCTV evidence as well as the statements and other pieces of documentary evidence it appears to me that the substance of the Applicant s case has not advanced much beyond the no video no prosecution case stigmatised by Dunne J in Fagan and accordingly in my view Murphy J was entirely correct to reject the applicant s claim In light of the conclusions set out above I hesitate to add anything to the already substantial jurisprudence on missing evidence which has accumulated over the past decade I am however struck by the fact that the summary trial of this relatively minor offence has now been delayed for more than six years simply because of this challenge In the event the order of this case is that the trial should proceed a trial which will necessarily be conducted in accordance with constitutional fairness But it can scarcely be doubted that the trial of such an incident after the passage of such a lengthy period of time is less than the ideal envisaged by the Constitution when it contemplated courts of local and limited jurisdiction Furthermore if it should happen that the trial was hampered or even frustrated by the unavailability or absence of witnesses due to the passage of time then that will fall some way short of the administration of justice to which the public are entitled It is a salutary reminder of the impact of the statements made in the judgments of the Superior Courts that two lines of authority which have occupied a substantial part of the judicial review lists of the High Court and the lists of this Court on appeal delay and missing evidence cases can be traced back to a single observation itself not apparently the subject of any detailed argument in The State O Connell v Fawsitt 1986 IR 362 to the effect that judicial review is the appropriate remedy where a challenge is brought in that case on grounds of delay to an anticipated trial on indictment in the Circuit Court Whether that is necessarily so and whether indeed the appropriate test for prohibition of a pending trial in a court established under the Constitution is the existence on the balance of probabilities of a real risk of an unfair trial are matters which might deserve further consideration It is noteworthy however that the Court in The State O Connell v Fawsitt expressly limited its decision to the case of trial on indictment The judgment accepted that in the case of summary trials it may well be that an equal or alternative remedy would be an application to the judge to dismiss on grounds of delay which was the issue in that case but the same must apply in the case of an allegation of unfairness created by the absence of crucial evidence Such a course is not however without its own difficulties as the decisions on abuse of process in the neighbouring jurisdictions have shown see Valentine Criminal Procedure in Northern Ireland 2nd Edition 2010 page 285 ff and the decision in DPP v O C 2006 IESC 54 makes it clear that no abuse of the process challenge can be brought at least in the Central Criminal Court But the application for dismiss of a summary trial contemplated in The State O Connell v Fawsitt would not only be an alternative remedy but one which at least potentially would be both speedier and cheaper than an application to the High Court for judicial review It might also have the not insignificant benefit of permitting the issue of the fairness of the trial to be determined by the court of trial of the particular case a court with unrivalled experience of similar trials and indeed the court with the Constitutional obligation of ensuring a fair trial In these days of vastly overburdened lists in the Superior Courts and enormous demands on the public purse it is perhaps desirable to give consideration to whether at least in the case of summary proceedings such an application would not be a preferable procedure THE SUPREME COURT Judicial Review 385 05 Fennelly J Finnegan J O Donnell J Between Paul Byrne Appellant V Director of Public Prosecutions At the suit of Garda Joseph Enright Respondent Judgment delivered by O Donnell J on the 17th day of November 2010 At approximately 7 30 pm on the 7th April 2004 the gardaí were called to a disturbance at the Centra store at Talbot Street in the centre of Dublin They were met by Mr Moeed Hamid the manager of the store He told the gardaí that two men one of whom was the Applicant had ordered food from the delicatessen counter and had then attempted to leave without paying and that when he approached them they abused him verbally took items from the shelves and threw them at him and other members of the staff Mr Hamid pointed out the two men who were still on the premises and who appeared to the gardaí to be intoxicated They were still verbally abusing Mr Hamid Garda Enright arrested the Applicant for an offence under the Criminal Justice Public Order Act 1994 The Applicant was subsequently charged with assault contrary to s 2 of the Non Fatal Offences Against the Person Act 1997 and criminal damage contrary to s 2 of the Criminal Damage Act 1991 The DPP directed summary disposal and jurisdiction was accepted by the District Court On September 9th 2004 another man pleaded guilty to charges arising from the same incident Thus far the incident was one which is unhappily a fairly routine matter in city centre shops and indeed in the District Court However the Centra store like many other convenience stores and petrol stations was equipped with CCTV Since the landmark case of Braddish v DPP 2001 3 IR 127 the existence or indeed more accurately the absence of CCTV footage and its impact on trials has been the subject of extensive consideration in the Superior Courts It is now accepted that the facts of each case may be critical in determining the legal consequences of the absence of CCTV footage or indeed any other available evidence Here the position was set out in the affidavit of Garda Enright His account was not challenged in any replying affidavit and he was not cross examined On the night in question he inspected the CCTV system Mr Hamid told him that the system did not permit the burning of a CD to copy the images but did allow for the printing out of still photographs from the film Mr Hamid printed out eight colour pictures which he gave to Garda Enright On the 26th May 2004 the solicitors for the Applicant wrote a standard letter to the Superintendent in Store Street garda station seeking copies of any witness statements and if none were in existence a precis of the evidence to be given copies of any statements alleged to have been made by the accused copies of the custody record and any other documents relied on The letter continued with reference to video evidence we rely on the Supreme Court rulings in DPP v Braddish and DPP v Dunne and request that you forward a copy of any such video to this office In response to this request the solicitors were furnished with a rudimentary precis of the case the custody records and the stills referred to above The solicitors then sought a copy of the video from which the stills had been taken The garda response on the 10th August 2004 was that there was no CD burning facility on the system and arrangements are being made to have the images transferred for viewing On the 10th February 2005 however the gardaí informed the solicitors that the footage was no longer on the hard drive There the evidence rested save that it appears Mr Hamid is no longer employed by the store The Applicant commenced judicial review proceedings seeking prohibition of the trial in the District Court A grounding affidavit was sworn by the Applicant s solicitor The Applicant himself did not swear an affidavit In the solicitor s affidavit the only thing said about the particular incident is the following I say that my instructions are that the applicant denies the aforesaid charges alleged against him and has pleaded not guilty to each of these The affidavit recited the sequence of correspondence and concluded that the deponent had been advised that in the circumstances the respondent the DPP has failed to ensure that the gardaí sought and preserved all evidence material to the allegation made against the applicant It is apparent therefore that this is not a case where it is alleged that the gardaí having retained evidence have somehow lost or mislaid it or returned it to the owner so that it is no longer available Here it was suggested that the gardaí had failed to secure from a third party evidence of undeniable relevance being CCTV coverage of the incident the subject matter of the charges The case thus raises the question of the extent of the duty of gardaí to seek out and preserve evidence This was the subject matter of Dunne v Director of Public Prosecutions 2002 2 IR 305 albeit that in that case there was an unresolved dispute as to whether the gardaí had ever taken possession of the video tape in that case Since the decision in Braddish the Superior Courts have experienced a significant number of cases about evidence particularly video evidence which has been lost mislaid or as in this case not obtained in the first place Each case it has been emphasised must be determined on its own facts However it is now recognised that Braddish was a very simple indeed exceptionally straight forward case See Scully v Director of Public Prosecutions 2005 1 IR 242 248 249 Hardiman J where the missing CCTV footage which had been viewed by the gardaí not only showed the incident alleged to constitute the offence but was the basis upon which the accused had been identified The principle in Braddish has to be interpreted realistically on the facts of each case See Braddish Hardiman J and Dunne McGuinness J Page 309 The realistic interpretation of the principle can be illustrated by the subsequent decision in Bowes McGrath v Director of Public Prosecutions 2003 2 IR 25 where the Supreme Court dealt with two applications to prohibit trials on the grounds of missing evidence In the McGrath case the accused was charged with dangerous driving causing death The motorcycle of the deceased had been released by the gardaí prior to the prosecution being commenced and there was credible evidence of the importance of permitting forensic investigation of the machine Furthermore such investigation had been sought promptly once the accused had been charged That case was to be contrasted with the Bowes case where the Supreme Court upheld the High Court s refusal to prohibit the trial of an applicant on a charge of possession of drugs with intent to supply where drugs had been found in the boot of a car which the accused had been driving On the eve of the trial an application was made to inspect the car and judicial review proceedings commenced when it emerged that the car was no longer available The critical point of distinction was not simply the timing of the application Braddish itself after all had dealt with an application made after a first trial had collapsed but that the court took a searching and sceptical view of the likelihood that any forensic investigation of the car could have assisted the accused where there was no doubt that the accused had been driving the car and where he had made an inculpatory statement This was the first indication of the subsequently repeated requirement that the accused was obliged to engage with the facts of the case against him or her in order to demonstrate the relevance and significance of the evidence alleged to be missing Subsequent cases have enlarged upon this obligation In Mitchell 2000 2 ILRM 396 High Court Geoghegan J an incident had occurred in the Temple Bar area of Dublin but the gardaí had not sought to obtain either the footage from the garda video recording system in the area or CCTV footage from a nearby private restaurant Geoghegan J considered that it was going too far to say that the prosecution must be prohibited where such steps were not taken because in the particular case the gardaí were entitled to accept that there was nothing useful on the CCTV camera in the restaurant and it could not be said that there was an obligation to seek and retain CCTV footage every time an incident occurred in a street Scully 2003 IEHC 92 High Court and 2005 1 IR 242 Supreme Court was a further important case on the significance of CCTV footage There the proprietor of a filling station had been assaulted as he locked up his premises for the night There was a CCTV camera in operation The gardaí viewed the tapes but concluded that the camera did not cover the area of the alleged assault was of poor quality and was of no evidential value In the High Court Kearns J as he then was rejected the application for prohibition He said This judgment Mitchell and the recent decision of the Supreme Court in McKeown reinforces my own view that some sort of commonsense parameters of reasonable practicality must govern any determination of the scope of the duty on the Gardaí when seeking out or preserving evidence This must of necessity imply that some margin of appreciation be extended to Gardaí when investigating crime to determine what they may reasonably consider to have some possible relevance in establishing guilt or innocence What is the alternative Is it for the accused person or his legal advisers to dictate the parameters Alternatively must the Gardaí go on seeking out and preserving any and every possible piece of evidence which might by the remotest chance admit of being relevant in some fashion in a subsequent trial I think not To set the bar too high for Gardaí in seeking out and or preserving evidence is more likely in my opinion to frustrate the administration of justice and due process than to uphold it On appeal the Supreme Court upheld the decision essentially on the basis that there had been undue delay in making the application something which was particularly relevant in this type of case As Mr Justice Hardiman in the Supreme Court pointed out Delay is significant not so much for its bare length in this case for instance it was considerably less than the unexplained delay in commencing the prosecution but for the indication that it provides that the case was based on a remote fanciful or theoretical possibility rather than a real desire to obtain evidence believed to be potentially exculpatory To put this another way all the Applicant has done here is merely to invoke the possibility that exculpatory evidence at one time existed and that there was something visible on the video despite the new evidence He must do more than that In the words of Finlay CJ in Z v Director of Public Prosecutions 1994 2 IR 476 at page 507 he must establish a real risk of an unfair trial The importance of the first adjective in this phrase is that it excludes a risk which is merely remote fanciful or theoretical The need to meet this requirement involves much greater engagement with the actual state of the evidence than is apparent here The applicant s case did not at all engage with the facts provided in the initial statements in April 2003 but simply considered them as irrelevant This omission represents a flight in to unreality Hardiman J upheld the decision of the High Court observing however that The prosecution are fortunate that in this case the view which the gardaí formed is independently corroborated and is unchallenged It is true that Hardiman J did suggest that as a general rule videos should be preserved It seems both prudent and fair to preserve a video tape the expense or inconvenience of doing so is minimal and the facts of another case might well lead to a different result following a decision to dispose of a video tape However this sensible advice does not assist the resolution of the present case where the footage was beyond retrieval and the case itself had been commenced before the judgment in Scully was delivered In Fagan v Judges of the Circuit Criminal Court DPP 2006 IEHC 151 Dunne J in the High Court rejected another challenge based on absent CCTV evidence In that case the applicant had been identified from CCTV footage The gardaí had sought a copy of the footage but unfortunately the disk which was believed to contain the copy footage turned out to be blank When a further effort was made to obtain a copy it was discovered that the hard disk had been overwritten It should be said that from the decided cases it appears that the fact that such hard disks are routinely overwritten is an established feature of the technology of CCTV cameras at least during this period There was however a statement by the accused admitting his involvement Once again prohibition was refused on the grounds of delay but Dunne J also considered the substance of the applicant s case She rejected the applicant s claim concluding This is not a case in which it has been suggested that there is a real issue as to the admissibility of the memorandum of interview furnished by the applicant to the gardaí It might well be that a memorandum of interview may be found to be inadmissible However this is not like the situation in the Braddish case where it was clear that the confession in that case was hotly disputed It is in that context that it appears to me that Ms McDonagh is correct in her submission that the applicant herein has failed to engage with the evidence in this case Looking at the overall situation herein it seems to me that this is a case in which leave has been sought to prohibit the trial by virtue of the happenstance that the CCTV footage is missing rather than an attempt to show that the applicant has been deprived of a fair trial by the absence of critical missing evidence I feel that my view in this regard is supported by the fact that such an application was brought only on the eve of trial and accordingly it seems to me to have the characteristics of an application made for the purpose of tripping up the investigators in discovery of the evidence as described by Hardiman J in the Scully case The pattern emerging from the jurisprudence can also be illustrated by two cases in which applicants succeeded In Ludlow v The Director of Public Prosecutions O Shea 2009 1 IR 640 the applicant was accused of dangerous driving causing death A major part of the case against the applicant was the allegation that the tyres of the vehicle which he was driving were excessively worn However the vehicle was released by the gardaí to the applicant s employer who disposed of the tyres before they could be inspected on behalf of the applicant The applicant s claim to prohibit the trial succeeded both in the High Court and on appeal McHugh v Director of Public Prosecutions 2009 IESC 15 concerned a charge of stealing from a Lidl store The accused had been identified only after the gardaí and the staff reviewed CCTV footage That footage however which was central to the case was no longer available Nevertheless the gardaí proposed to give identification evidence by reference to the now non existent CCTV footage and by proffering some still photographs which had been preserved from the CCTV footage The Court reviewed the photographs and concluded that they did not permit any conclusion to be reached as to whether or not the accused had engaged in the activity alleged Accordingly the Supreme Court was prepared to uphold the High Court s decision to prohibit the trial In this case as in the Ludlow case there is an engagement with the facts of the case and a close and searching analysis of the manner in which the absent evidence might affect the trial Even then it is to be noted that in the subsequent case of CD v DPP 2009 IESC 70 Fennelly J observed of McHugh that at this point on reflection I wonder whether even that case could not properly have been left of the basis that it would be unfair to admit evidence of identification from unavailable CCTV footage which would be a matter for the trial judge In the CD case by contrast the Supreme Court refused to prohibit a trial of an incident which was alleged to have occurred in a matter of seconds in a public place and where the Applicant complained that although the gardaí had retained certain video evidence they had not obtained footage from one camera which it was alleged supplied a better angle At paragraph 24 Fennelly J said As has been emphasised many times this type of application must be considered in the context of all the evidence likely to be put forward at the trial The key question whether there is a real risk of an unfair trial cannot be viewed in vacuo evidence Evidence is never perfect Neither the prosecution nor the defence can be

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  • Colville his memory of the protocol was that he was not to act if he felt it was outside his capacities The test therefore was a somewhat subjective one and was not obviously breached All of this illustrates what was missing in the Plaintiff s case Given the rather dramatic and dangerous situation which arose the fact that no other Dunnes Stores employee was able to come to Mr Byrne s assistance and the fact that it seems highly probable that late night opening on Thursday is at least as busy and possibly more troublesome than day time shopping it seems likely that a person with even basic experience would be able to point to a series of flaws in the manner in which the system operated on that evening and could have compared it unfavourably with best practice However no evidence of that nature was given and I do not think that a court would be justified in determining of its own knowledge that it was for example folly or even unreasonable for Dunnes only to have had one security guard on late night shopping in July 2002 or for a security guard to confront one or at best two juvenile if somewhat troublesome shoplifters or when one ran off to have pursued him Indeed in this regard I would be very slow to impose through the law of negligence some inflexible rule that there must always be a minimum of two security guards in any store at least on the limited evidence proffered in this case I would be even more reluctant to stigmatise as negligent the acts of the security guard who confronted chased and detained a shoplifter especially one who appeared unruly intoxicated and given to violence It is one thing for prudence to suggest caution rather than courage in certain circumstances it is quite another that the law should demand caution and penalise courage However there is a more narrow basis for the conclusion that in this case Dunnes Stores failed to adhere to an appropriate standard of care Perhaps the most telling piece of evidence was that volunteered by Mr Byrne in cross examination that it was completely against procedure to involve a member of the public Mr Byrne gave that evidence while denying that he had requested Mr O Neill s assistance but the trial judge found that Mr Byrne had indeed asked Mr O Neill for help and on the evidence that conclusion was entirely appropriate and cannot now be challenged on this appeal On one view it might be said that involving a member of the public in breach of certain procedures makes Mr Byrne negligent and Dunnes Stores vicariously liable for his default However I think that that analysis would be more than a little artificial I am not sure that it can be said that any security guard no more than any citizen can be said to owe a duty of care to members of the public not to involve them by asking them for help to detain a suspect It is I think preferable to see that evidence as the clearest possible indication that if there was any system in place on the evening it had gone badly wrong In the absence of evidence of common practice it may not be possible to say with certainty that there ought to have been another security guard to assist Mr Byrne but there certainly ought to have been someone available to assist him The image of the two way radio which was useless because there was no one to communicate with is itself telling It is clear that there were managers on duty indeed Mr Byrne said that he asked Ms Stapleton to get them and that such managers could have assisted Mr Byrne if alerted to the situation It seems clear that there ought to have been a more effective and immediate method of communication with managers than having to resort to asking a passing cleaning lady to call them It does not appear that there was any system in place where the two way radio could be held by another person for the evening or any arrangement for Mr Byrne to be able to communicate with any other member of staff Even on the limited evidential record therefore I consider that the trial judge is entitled to come to the conclusion that this state of affairs was unreasonable and if necessary amounted to the type of folly which Lord Dunedin identified more than 100 years ago The third and fourth points argued by the Appellant can be taken together Even assuming some default on the part of Dunnes Stores such as that identified above it was nevertheless said that Dunnes Stores were not liable because their action or inaction did not cause the peril or give rise to the necessity for rescue On the contrary it was said Mr O Neill s injures were caused by the wrongful and indeed criminal acts of third parties The Appellant also stressed the fact that at the time of the assaults on Mr O Neill Garda Delaney had arrived and was sufficiently in charge to tell Mr McCormack to go away It was also emphasised that the actual assault on Mr O Neill had come out of the blue and clearly was not anticipated by the Garda The consideration of these arguments involves surveying a difficult intersection between two areas of the law of negligence which have posed problems of analysis over the years the rescuer cases and those cases in which it is contended that an alleged tortfeasor is responsible for injury caused by the wrongful acts of a third party At the outset it is necessary to consider if this was truly a rescue case at all The Appellant referred to the decision of this Court in Phillips v Durgan 1991 ILRM 321 In that case a couple had been retained by the first named plaintiff s brother to clean a house and then to decorate it The kitchen was very greasy The gas cooker which was the only means for heating water was itself defective producing only a guttering flame The first named plaintiff slipped and a towel she was carrying caught light from the cooker She was badly burned and her husband the second plaintiff also sustained burns trying to rescue her from the fire In the High Court the trial judge had rejected the contention that the defendant s negligence was a primary cause of the fire but had found for the plaintiffs considering that it was a form of rescue case The Supreme Court held that the case could not be treated as a rescue case but nevertheless upheld the award on the grounds that the defendant had been in breach of a primary duty of care owed to the plaintiff and since the defendant was the occupier of premises which posed a danger to lawful entrants including the plaintiffs It appears to be suggested that this case is similar in that it is suggested that the true cause of Mr O Neill s injuries was the wrongful indeed criminal act of Ciaran McCormack When Phillips v Durgan is analysed it seems to me to illustrate precisely why this is indeed a case which is properly addressed by reference to the principles established in the rescue cases As Cardozo J memorably observed in Wagner v International Railway 1921 133 NE 437 Danger invites rescue The cry of distress is the summons to relief The law does not ignore these reactions of the mind in tracing conduct to its consequences In the classic rescue case therefore a member of the public with no previous connection to the incident or the parties responds either to a cry for help or to a situation which itself cries out for help However the relationship of the Phillips to Mr Durgan was established by the existing contract between them They did not come upon a scene and respond to it they were required to be there by virtue of their agreement with Mr Durgan and his invitation to his unsafe premises It was entirely understandable therefore that the Supreme Court rejected the attempt to characterise them as somehow akin to rescuers By contrast the Plaintiff here is almost in the classic situation A member of the public with no prior knowledge or contact with any of the parties he responded not just to the situation but to a positive cry for help Quite apart from the dearth of evidence this case is undoubtedly made more complex as a matter of law by the fact that the direct cause of the Plaintiff s injury was the wrongful acts both criminal and tortious of another party Ciaran McCormack for whom Dunnes Stores were not responsible Looked at from one perspective it might be said and was said by the Appellant that the source of the peril giving rise to the need for rescue by Mr O Neill was Mr McCormack s violent act and not the carelessness of Dunnes Stores Alternatively it was said that the wrongful acts of Ciaran McCormack were the proximate cause of Mr O Neill s injuries and constituted a novus actus interveniens breaking any causal link between the negligence of Dunnes Stores and the injuries suffered I should say at this point that I am using the term negligence in its meaning in common usage even among lawyers rather than as a term of art It is technically incorrect to speak of negligence in the absence of establishing a duty of care and in one sense the question whether Dunnes Stores owed a duty of care to members of the public to protect them from the risk of assault is at the very heart of this case There is no reason in principle why if on the established law a party can be liable for injury caused by the wrongful act of a third party the first party s liability should not extend to any rescuer who is injured in an attempt to rescue an individual As Cardozo J observed in Wagner the wrongdoer may not have foreseen the coming of the deliverer He is accountable as if he had It is necessary however to separate those two strands of authority The classic case where an initial act of negligence made a party responsible for the loss caused by the wrongful act of the third party is the well known case of Home Office v Dorset Yacht Company 1970 AC 1004 considered recently in this Court in Breslin v MIBI 2003 2 IR 203 The principle in the Dorset Yacht case was expressed succinctly by McWilliam J in a Circuit Court case of Dockery v O Brien 1975 109 ILTR 127 With regard to a novus actus interveniens Lord Reid in the Dorset Yacht Company case said that if what was relied on as a novus actus interveniens is the very thing which is likely to happen if the want of care which is alleged takes place the principle involved in the maxim is no defence and he added that unfortunately tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant This was the very kind of thing which a reasonable person should have foreseen Applying that test here it seems to me there is a strong connection between the wrongdoing identified on the part of Dunnes Stores and what occurred here Mr Byrne sought help Had no help been forthcoming from any member of the public and had Mr Byrne been badly injured I apprehend that Dunnes Stores would have been liable to him See e g Walsh v Securicor Ireland Limited 1993 2 IR 517 In the event Mr O Neill responded to the request for help Mr Byrne had to seek assistance from a member of the public against all procedure precisely because he had no effective method of seeking help from his co employees As Mr Byrne frankly admitted the risk of some struggle violence and perhaps injury was an inescapable part of the job It was therefore entirely foreseeable that if a security guard was put in a situation requiring assistance and was obliged to seek assistance from a member of the public and if that member of the public responded then he may well have be injured in offering assistance In this regard I think it is irrelevant that the precise nature of the savage attack on Mr O Neill may not have been foreseen it is enough that the type of damage here physical injury caused by an attempt to restrain a wrongdoer was readily foreseeable If the foregoing analysis is correct then the rest of the case follows quite readily There is no logical or conceptual difficulty in permitting recovery by a rescuer in circumstances where the defendant is or would be liable for the foreseeable wrongful acts of a third party To illustrate this it may be useful to adapt the facts of the leading case of Smith v Littlewoods Organisation Ltd 1987 AC 241 which was also considered in Breslin v MIBI There fire was started by vandals in the defendants vacant cinema premises which spread to adjoining buildings The owners of those buildings sued the defendants It was known that trespassers had used the vacant cinema but on the facts of the case the defendants succeeded because there was no evidence that the defendants had knowledge of the fact that vandalising trespassers were in the habit of lighting fires in the disused cinema However had the defendants been so aware there is no doubt that they would have been liable in such circumstances to their neighbours If that finding had been made I do not think there would have been any difficulty in extending liability to any rescuer who was injured while entering any of the buildings attempting to rescue someone even though the direct cause of the peril in that case the fire would have been the vandals rather than the cinema owners The conceptual difficulty with the rescuer cases is the sometimes attenuated chain of causation and the indulgent view that courts take of the issue of the duty of care An often quoted observation is that of the late Professor Fleming in The Law of Torts 5th Edition 1992 p 170 A remarkable change has overtaken the legal position of the rescuer once the Cinderella of the law he has since become its darling The rest of the paragraph which explains this observation is also worthy of quotation It used to be that his claim for injury in coming to the aid of someone imperilled by the defendant was defeated in short shrift on the grounds that his voluntary intervention either severed the causal link with the defendants negligence or showed that he voluntarily assumed the risk These theories have all toppled like nine pins indeed in its anxiety to support the rescuer modern law has generally evinced little interest in the conventional requirements of foreseeability and duty emphasis added Indeed Professor Fleming draws an instructive comparison between the foreseeability requirements of rescue cases and those for example in nervous shock cases In any event foreseeability must here be a very broad notion in marked contrast especially to the nervous shock cases of the opposite end of the spectrum The divergent judicial reaction to these two situations strikingly illustrates the fact that far from foreseeability being a true or sole determinative duty weighty policy considerations militate in the one case in favour in the other against the plaintiff s claim to legal protection Behind the ambivalence of the foreseeability formula lies the desire on the one hand to encourage altruistic action and on the other a decided hesitation based on administrative grounds to permit recovery from mental distress In my view this case fits comfortably within the approach so described Indeed for the reasons set out above this is a case in which there is a particularly close connection between the negligence established against the Defendant and the injury caused to the Plaintiff This analysis also disposes of the argument that the peril giving rise to the need for rescue was not caused by the Defendant but rather by the wrongful act of a third party Because this case involves the complication of third party wrongdoing it is I think necessary to consider whether the Defendant was a cause rather than necessarily the proximate cause if any of the Plaintiff s injuries as long as the wrongdoing itself was the very thing which was to be anticipated as a result of the Defendant s negligence Furthermore while it might be said that the situation was caused at least in part by the wrongful shoplifting and attempt to escape of Alexander Colville there is little doubt that the need for rescue by a member of the public was caused by the negligence of Dunnes Stores If Dunnes Stores had not been negligent as outlined above Mr Byrne and Ms Stapleton would not have had to ask Mr O Neill or any other member of the public for help if Mr O Neill had not responded to the requests for help he would not have been injured In these circumstances and notwithstanding the somewhat rudimentary nature of the case made and the tenuous evidential basis for the trial judge s conclusions I consider that the appeal in this case should be dismissed This is a result which I think accords with both legal principle and common sense It would indeed be regrettable if the message delivered by the law of tort to a member of the public faced with a cry for help is that if they intervene they do so at their own risk and that in all the circumstances it would be wiser to pass by on the other side Lord Atkin observed that the example of the Good Samaritan in the parable may not answer all the questions of the law of negligence but neither the law nor morality has ever sought to encourage imitation of the Levite THE SUPREME COURT 77 07 Fennelly J O Donnell J McKechnie J Between BRENDAN O NEILL Plaintiff AND DUNNES STORES Defendant Judgment delivered by O Donnell J on the 16th day of November 2010 On the 4th July 2002 the Plaintiff was doing some evening shopping in a shopping centre in Thurles in which the Defendant was the principal tenant Around the time the Plaintiff was approaching the rear door of the centre Mr Keith Byrne a security guard employed by the Defendant saw two youths in the off licence of the Defendant s store taking bottles from shelves and putting them into their inside pockets They were tall well built and it appears intoxicated He approached them and asked for identity as they appeared to be under 18 One of them Ciaran McCormack produced a false ID The other Alexander Colville said he would get his from a car and then ran away Mr Byrne gave chase and caught Alexander Colville just outside the centre Alexander Colville struggled and tried to reach for one of the bottles in his coat to strike Mr Byrne and Mr Byrne asked a Sadie Stapleton a cleaner in the shopping centre to go and get help from he said some of the managers in Dunnes Stores Ms Stapleton encountered the Plaintiff and a number of others coming into the shopping centre and said words to the effect help there is after being a robbery Ms Stapleton s recollection was not markedly different She thought she said something like help Keith outside he s in trouble Only the Plaintiff responded The Plaintiff saw Mr Byrne struggling with Alexander Colville and saw Alexander Colville trying to get a bottle to strike Mr Byrne The Plaintiff says that Mr Byrne asked him for help Although Mr Byrne denied this the trial judge accepted the Plaintiff s evidence in this regard and on this appeal the Appellant properly accepts that this is the factual basis upon which the Court must now proceed The Plaintiff went to Mr Byrne s assistance and Mr Byrne frankly acknowledges that when the Plaintiff came to help Mr Byrne did not turn it down It is apparent that this was a difficult situation for Mr Byrne who was the only security guard then on duty The Plaintiff helped Mr Byrne to restrain Alexander Colville who was at that stage trying to hit Mr Byrne with a bottle At this point Ciaran McCormack was on the scene pulling and kicking at both Mr Byrne and Mr O Neill telling them to leave his friend alone However Mr Byrne had been able to phone the gardaí on his mobile phone The police station was close by and a member of the gardaí Garda Henry Delaney arrived The Plaintiff continued to restrain Alexander Colville Ciaran McCormack went back into the shopping centre Mr Byrne pointed him out to Garda Delaney and told him that Ciaran McCormack had been involved in the incident Garda Delaney went back into the centre got Ciaran McCormack and brought him back and began to take details Ciaran McCormack became extremely aggressive and started pushing and kicking at Mr Byrne the Plaintiff and Garda Delaney Garda Delaney then told Ciaran McCormack to go away and he left Mr Colville was still being held by the Plaintiff and Mr Byrne More youths came on the scene and there was a lot of pushing and shoving Garda Delaney had radioed for help and more gardaí arrived on the scene Just about that time Ciaran McCormack came back from behind the shopping bay with a motor cycle chain and swung it striking the Plaintiff across the face fracturing his nose injuring his face and driving the Plaintiff back against a pebble dashed wall injuring his back Ciaran McCormack continued to stand swinging the chain but eventually the gardaí subdued him During the altercation the Plaintiff and Mr Byrne were told by some of the youths that they knew where they lived and that they would be killed It was a very violent incident and the most serious during the two years or so in which Mr Byrne had been employed in Thurles In these proceedings the Plaintiff sues the Defendant contending that the Defendant s negligence caused or was a cause of his injuries The case started in the Circuit Court but because the condition of the Plaintiff worsened it was transferred to the High Court Nevertheless the case was conducted in a fairly straightforward way There was a small number of witnesses no expert evidence and the case concluded in one day To this account of the facts it is necessary to add some further elements of the evidence most of which emerged from the testimony of Mr Byrne Mr Byrne had received training in unarmed combat restraint and self defence in the Army At the time of the trial he was working as a body guard in Haiti He accepted on a number of occasions that there was an inevitable risk of injury when he confronted any suspected shop lifter That he accepted frankly was part of the job He himself sustained some minor injuries in the fracas The Defendant company had a protocol for behaviour of security guards He did not have a copy in court and the Defendant did not put the protocol of evidence Mr Byrne recalled however that it provided that if he felt he could deal with the situation he could go ahead and deal with it but if he felt he was outnumbered then he was to wait for help On the night in question he was the only security guard on duty Normally during the day there were two or three security guards but on this occasion he did not know whether the other security guard was off duty or had finished work for the evening The security manager had finished work at approximately 6p m which would have been the norm on a late night shopping He had been supplied with a two way radio but he did not have it with him that evening He said that there was no point since there was no one to take the other unit There was also no arrangement that a manager working that evening should take the other unit In denying that he had sought assistance from the Plaintiff he explained that It would be completely against procedure to get a member of the public involved On this relatively sparse evidential basis the Court had to determine the Plaintiff s claim for damages At the close of the Plaintiff s case the Defendant had sought a non suit indicating however that it intended to go into evidence in the event that the application was refused Accordingly the issue at that stage was whether the evidence disclosed a prima facie case The trial judge duly refused the application and indicated he would give his reasons in his judgment In the event after hearing all the evidence the trial judge found that the Defendant had been negligent The judge s reasoning is set out in a relatively short passage in his judgment First he held that having only one guard on duty was inadequate Second leaving Mr Byrne to communicate by way of mobile phone was much less efficient than having an effective two way radio system Third Mr Byrne while acting conscientiously in confronting what the trial judge called vividly two drunken louts had attempted a citizen s arrest rather than adopting the more prudent course of relying on his own observations and the CCTV evidence to ground a complaint to the gardaí The trial judge concluded Mr Byrne negligently breached that protocol and the defendant is vicariously liable for that act The situation requiring assistance of a rescuer was reasonably foreseeable and was brought about by a combination of Mr Byrne s non adherence to the protocol and the Defendants failure to provide appropriate backup for Mr Byrne It seems therefore that the trial judge identified two distinct bases for liability first primary liability of a wrongdoer to a rescuer who responds to the peril created by the wrongdoer and second the vicarious liability of an employer for the negligent acts of his or her employee The trial judge proceeded to award the Plaintiff damages Against the decision on liability the Defendant appeals to this Court There is no appeal on the quantum of the damages On this appeal the Defendant takes four points which are interrelated to some extent First it is said that the trial judge was wrong to refuse the Defendant s application for a non suit at the end of the Plaintiff s case It was pointed out that almost all the evidence on which the trial judge relied in his finding of liability was derived from the Defendant s evidence Looked at critically it is suggested there was no prima facie case at the close of the Plaintiff s case It was argued that the trial judge had failed to give separate reasons for the refusal of the non suit application his reasons being subsumed in the general reasons upon which he found the Defendant negligent It is clear that there was very little evidence to sustain a finding at the close of the plaintiff s case the bulk of the evidence helpful to the Plaintiff was elicited in the cross examination of the Defendant s witnesses However before proceeding to analyse in any detail the precise weight of the evidence adduced by the Plaintiff a more basic issue arises on the assumption that there was no sufficient evidence to find a prima facie case at the close of the Plaintiff s case but where the Defendant goes into evidence and supplies the deficiency in the Plaintiff s case can an appeal court ignore the evidence which ex hypothesi show that the Defendant s had been negligent and nevertheless overturn what appears to be a correct decision in favour of the Plaintiff on the grounds that the Plaintiff had failed to establish a prima facie case in his own evidence and that the trial judge had wrongly refused the Defendant s application for a non suit It appears that the practice in criminal cases on this issue is a little unclear See Ryan and Magee The Irish Criminal Process p 341 but on the hearing of the appeal the Court drew the attention of the parties to a decision of the Court of Appeal in England in Payne v Harrison 1961 2 QB 403 where in a similar situation and having held that the judge had not in fact erred in law because there was just sufficient evidence at the end of the case for the plaintiff to justify his ruling the Court of Appeal went on to observe that since the defendant had not stood on his submission and had gone into evidence the duty of the appellate court was to assess the position realistically and consider the whole of the evidence including that of the defendant It would the court considered be a denial of justice if the court made its assessment on only that part of the evidence as it stood at the close of the plaintiff s case when the judge made the ruling appealed against While this decision is merely of persuasive authority it accurately expresses the conclusion to which I was inclined to come of my own volition In the circumstances I do not consider it necessary to analyse whether there was just sufficient evidence to establish a prima facie case at the close of the Plaintiff s case Instead I will consider the entirety of the evidence and whether the trial judge was correct to find that the Defendant was liable to the Plaintiff The second and somewhat related argument was that it was said that there was no expert evidence to support the Plaintiff s case It was however accepted that there is no absolute requirement that expert evidence be given in support of any plaintiff s claim and there are many matters which are within the ordinary judgment of the courts In AG Ruddy v Kenny 1960 94 ILTR 185 186 Davitt P observed that There are certain matters in which the law considers that the Court is not as capable as are expert witnesses in drawing inferences matters which require special study and experience in order that a just opinion may be formed as for instance matters of art science medicine engineering and so forth In regard to such matters witnesses of whose expertness the Court is satisfied are allowed to give evidence of their opinion It follows that where something is not a matter which requires special study or expertise the Court is in a position to draw its own conclusions However that is not to say that the absence of expert evidence did not hamper the plaintiff s case In Bradley v CIE 1976 IR 215 the Supreme Court outlined a test of negligence in the context of employment but which is of wider application Henchy J cited the formulation of Lord Dunedin in Morton v William Dixon Ltd 1909 SC 807 It is absolutely necessary that the proof of the fault or omission should be one of two kinds either to shew that the thing which he did not do was the thing which was commonly done by others in like circumstances or to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it Subsequent glosses on that passage have emphasised that the fundamental test is the conduct and judgment of the reasonable and prudent man and have explained that the reference to folly means no more than imprudent or unreasonable Henchy J concluded that the test does no more than provide a mode of testing whether in the class of cases to which it refers the employer is taking reasonable care for the safety of his employee or as it was sometimes put whether he has subjected him to unnecessary risk In my view Bradley v CIE provides some focus on the true issue in controversy here It is not the case that it is always necessary to have so called expert evidence sometimes fanciful and nearly always expensive on matters that are little more than common sense It cannot be suggested that there is an academic discipline of management of shopping centres in substantial rural towns The particular issues involved are not so recondite that it could be said that a court can only apply the test identified in Bradley to the facts of this case with the benefit of expert evidence However the difficulty here is not that such expert evidence was essential but rather that such evidence is a convenient way of giving evidence of general practice Here it could be said with some force that there was no evidence from any witness as to whether or not it was normal to have two or more security men on duty for late night shopping in a store with the size and throughput of Dunnes Stores in Thurles While there was reference in cross examination to a protocol produced by Dunnes only a portion of which Mr Byrne could remember the document itself was not put in evidence In the event there are significant difficulties with treating this as evidence of general practice from which negligence can be deduced First it is strictly speaking only the evidence of Dunnes own practice and not the general practice of reasonable store owners Second the evidence itself was somewhat equivocal Even if it was accepted that Mr Byrne was outnumbered and he maintained he only went after one culprit Alexander Colville his memory of the protocol was that he was not to act if he felt it was outside his capacities The test therefore was a somewhat subjective one and was not obviously breached All of this illustrates what was missing in the Plaintiff s case Given the rather dramatic and dangerous situation which arose the fact that no other Dunnes Stores employee was able to come to Mr Byrne s assistance and the fact that it seems highly probable that late night opening on Thursday is at least as busy and possibly more troublesome than day time shopping it seems likely that a person with even basic experience would be able to point to a series of flaws in the manner in which the system operated on that evening and could have compared it unfavourably with best practice However no evidence of that nature was given and I do not think that a court would be justified in determining of its own knowledge that it was for example folly or even unreasonable for Dunnes only to have had one security guard on late night shopping in July 2002 or for a security guard to confront one or at best two juvenile if somewhat troublesome shoplifters or when one ran off to have pursued him Indeed in this regard I would be very slow to impose through the law of negligence some inflexible rule that there must always be a minimum of two security guards in any store at least on the limited evidence proffered in this case I would be even more reluctant to stigmatise as negligent the acts of the security guard who confronted chased and detained a shoplifter especially one who appeared unruly intoxicated and given to violence It is one thing for prudence to suggest caution rather than courage in certain circumstances it is quite another that the law should demand caution

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