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  • there were two they used two way radio He agreed that he had been unable effectively to communicate with anybody from Dunne stores over the approximately 20 minute period of the incident He agreed that this was not ideal and that the two way radio was a quicker method of communication than a mobile phone 10 The question that has to be posed is what was the basis in the evidence for concluding that it was negligent on the part of Dunne s Stores to have only one security man on duty 11 The decision of this court in Bradley v Córas Iompair Eireann 1976 I R 217 suggests that at least in cases of employers liability negligence can be established in either of two ways firstly by establishing a departure from known and accepted standards in the particular trade or industry secondly by demonstrating a failing so obvious as to be unreasonable Henchy J cited two principal authorities In Morton v William Dixon Ltd 1909 S C 807 Lord Dunedin pronounced what Henchy J considered to be the most commonly cited statement of the necessary degree of proof as follows I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds either to shew that the thing which he did not do was a thing which was commonly done by other persons 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 12 That prescription was as Henchy J put it glossed by Lord Normand in Paris v Stepney Borough Council 1951 A C 367 at 382 The rule is stated with all the Lord President s trenchant lucidity It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances But it does not detract from the test of the conduct and judgment of the reasonable and prudent man If there is proof that a precaution is usually observed by other persons a reasonable and prudent man will follow the usual practice in the like circumstances Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it 13 The authority of Bradley v CIE was accepted by this Court in Kennedy v Hughes Dairy Ltd 1989 I L R M though McCarthy expressed doubt that Bradley should be regarded as laying down for all time two unchanging compartments into one or both of which every plaintiff s claim must be brought if it is to succeed In that case a majority of this Court held that the High Court had been wrong to withdraw a case from a jury on the authority of Bradley The plaintiff s claim that his employer had been negligent in failing to provide him with protective gloves or gauntlets to protect him against broken glass had however been supported by the expert evidence of an engineer 14 I agree with the view of McCarthy J that Bradley should not be treated as laying down a rigid formula The test in all cases is as to whether the plaintiff has been able to show that the defendant has done something or as failed to do something which a reasonable man exercising reasonable care would have done or not done as the case may be Has the defendant been in breach of the duty of care he or she owes to the plaintiff Nonetheless it is necessary to look for some objective guidance as to what is or is not a safe system whether of work or of anything else That is why it is customary even if not absolutely necessary in principle to seek to support a claim for damages for negligence by expert evidence The plaintiff must show that the defendant has fallen short of the standard of care that the plaintiff is entitled to expect of him in all the circumstances of the relationship between them The notion of standard connotes something objective and if not measurable at least capable of objective assessment It is not therefore a mere matter of subjective judgment or impression It must be consistent not random The following passage form Charlesworth and Percy on Negligence Sweet Maxwell 8th ed Par 6 06 explains that the problem is to relate the generality of the duty and standard of care in negligence to particular practical circumstances to say that the standard of care is that of a reasonable man is to beg the question A tribunal of fact can only be directed to apply the standard of care if it is explained what amount of care the law regards as reasonable under the circumstances of the case being tried 15 Applying these principles to the present case I fail to see in the evidence any basis for concluding that negligence has been established against the defendant in failing to have more than one security guard on duty on the evening in question O Donnell J suggests that there was a sparse evidential basis to sustain the plaintiff s claim but I would go further The learned trial judge appears to have attached importance to the fact that Mr Byrne was responsible for a drapery as well as a grocery and an off licence a fact which he established himself at the end of the evidence Mr Byrne s physical area of responsibility had not featured in the evidence and it is not clear that it played any part in the events of the evening in question where all relevant action took place in the off licence or on escape from it More fundamentally I do not think he had any foundation in the evidence for concluding that more than one guard was necessary No comparative standards were established The only point of reference was the protocol which was not produced in court The existence of the latter document emerged only in cross examination The plaintiff had not sought discovery of documents Mr Byrne s interpretation was that he was not out numbered He considered that he was not in breach of the protocol and he was the only witness to have seen it In effect the plaintiff relied on cross examination of Mr Byrne to establish the existence of the protocol and give a partial account of its undisclosed contents but rejected his interpretation of it 16 It follows from the foregoing that the absence of two way radio was not in any way relevant It could only be relevant if the absence of a second security guard amounted to negligence 17 Finally I do not agree with the conclusion of the learned trial judge that the defendant was negligent insofar as Mr Byrne chose to pursue Colville rather than merely watch him and call the gardaí In an obvious sense that would of course have been the safer course However it was not negligent of the defendant to try to pursue and catch an obvious shoplifter No attempt was made to establish a departure from standards in this respect It is true that Mr Byrne was vigorously cross examined to the effect that he had disobeyed the protocol by pursuing in the way he did but he disagreed I simply do not see how Dunnes Stores were negligent in pursuing a shoplifter rather than adopting the alternative course of simply watching noting the evidence and calling the gardaí 18 In these circumstances I do not believe that any finding of negligence was justified Accordingly any question of rescue simply does not arise Liability in rescue cases is predicated on some act of want of care on the part of the defendant leading to the creation of the risk which prompted the voluntary act of rescue Thus the necessary precondition does not exist I would add that I am not at all convinced that liability for the creation of a situation of danger could on any view be placed at the door of the defendant In Philips v Durgan 1991 I L R M 321 Finlay C J expressed the view at page 326 that the principle of rescue truly consists only of a situation in which the court will rule on as a foreseeable consequence of the negligent commencement of a fire that persons seeking to put out that fire either by reason of their duty as officers of a fire brigade or by reason of their desire to prevent damage whether to persons or property may be hindered by the existence of the fire It appears to me at least possible that the true analogy with the present case would be the behaviour of the suspected shoplifters including the criminal behaviour of McCormack rather than Dunne Stores security arrangements The former was a danger which was not created by Dunnes Stores However I would prefer to leave the issue of liability to rescuers to be decided by a larger formation of this Court in a case where it more directly arises 19 I would allow the appeal and dismiss the plaintiff s claim THE SUPREME COURT APPEAL NO 77 2007 Fennelly J O Donnell J McKechnie J BRENDAN O NEILL PLAINTIFF RESPONDENT AND DUNNES STORES APPELLANT DEFENDANT JUDGMENT of Mr Justice Fennelly delivered the 16th day of November 2010 1 I gratefully adopt the summary of the facts of this case set out in the judgment which is about to be delivered by O Donnell J In effect the plaintiff came to the assistance of the security guard at Dunnes Stores while the latter was seeking to overcome a suspected shoplifter who was in flight The shoplifter s companion joined the fray and violently attacked the plaintiff who had voluntarily come to the aid of the security guard by swinging a bicycle chain across his face The plaintiff suffered severe facial injuries 2 The first and striking fact about the case is that it was decided that the defendant Dunnes Stores was negligent in the absence of any expert evidence that the standard of their security provisions departed from any objective or generally accepted norm The second is that all the evidence upon which the learned trial judge Kelly J based his judgment was given on behalf of the defendant 3 A first procedural point needs to be considered In circumstances where the defendant applied unsuccessfully for a non suit but then went into evidence can the defendant ask this Court on appeal to allow the appeal by ignoring the evidence called by the defendant On this point I am in full agreement with O Donnell J It is true that the non suit application presents the defendant with somewhat of a dilemma The procedure outlined in Hetherington v Ultra Tyre Service Ltd 1993 2 I R 535 and O Toole v Heavey 1993 2 I R 544 requires the defendant when applying for a non suit to indicate whether or not he intends to call evidence He is not it appears entitled to have a ruling on whether the plaintiff has established a prima facie case unless he informs the court that he intends to go into evidence In that case where he fails in his application he will call evidence and the High Court decision will be based on the entire of the evidence If the defendant informs the Court that he will not go into evidence in the event that his non suit application fails the court makes no ruling on the existence of a prima facie case it decides the entire case on its merits on the evidence called by the plaintiff Thus the defendant cannot obtain a ruling on the existence of a prima facie case unless he is prepared to opt in advance to call his own evidence 4 Nonetheless in the situation presented by the present appeal it seems clear that as a matter of justice the Court must look at the entirety of the evidence The alternative could be that because the trial judge should have granted a non suit this Court would have to close its eyes to actual evidence of negligence called on behalf of the defendant which would be patently unjust The final result is not unjust If the defendant has been shown to have been negligent it is no injustice that he should have to compensate the plaintiff merely because he has suffered a procedural disadvantage 5 Kelly J expressed his opinions on the question of liability firstly in the following terms The security arrangements which the defendant had in place on the evening in question were substandard To ask one person to take responsibility for the security of the entire of the defendants shop consisting of drapery grocery and off licence was not reasonable The absence of a two way radio was a considerable impediment to Mr Byrne being able to carry out his duty and deprived him of the ability to call for backup from the defendant s personnel as a matter of urgency Mr Byrne attempted to do his duty as best he saw it Given that he was dealing with two intoxicated persons it would have been more prudent not to have attempted to detain Colville He was alone and outnumbered They were armed with bottles It was very likely that the already violent Colville would be joined by McCormack when he was being arrested Both were intoxicated Under the terms of the protocol he ought to have sought help rather than attempt an arrest 6 At a separate point in his judgment the learned judge following some legal citation gave his reasons for his findings of negligence as follows First the employment of a single security officer to cover the entire of the premises on an occasion of late night shopping was inadequate There was no security back up for him Secondly the only method of communication that he had with other members of the defendant s staff was a mobile phone That was much less efficient than the two way radio which would have been in operation had other security personnel been on duty at the time Thirdly Mr Byrne conscientiously attempted to do his duty in circumstances where it would have been more sensible to have adopted a different approach When confronted with two drunken louts both with bottles in their jacket pockets it would have been safer to have contacted the police before endeavouring a citizen s arrest of Colville The police station is next door to the shopping centre and closed circuit television was in operation in the defendant s store The protocol which I was told about does not require a security officer to attempt an arrest in circumstances where he is outnumbered 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 defendant s failure to provide appropriate backup for Mr Byrne 7 These findings fall into the following three parts i it was negligent on the part of the defendant to confide the security of premises consisting of drapery grocery and off licence to a single security guard ii it was negligent to equip that guard only with a mobile phone as distinct from two way radio iii it was negligent on the part of the security guard himself to confront and seek to apprehend the suspected shoplifter Colville instead of summoning the gardaí 8 The second and third headings were in effect closely related to and dependent on the first Mr Byrne explained the absence of a two way radio in evidence there was no point in having one when there was no other security man to communicate with The finding of negligence in deciding to confront Colville flowed from a part of Mr Byrne s evidence to the effect that a Dunnes Stores protocol not produced in evidence stated that the security staff were not to confront shoplifters or others if they were outnumbered but were to call for help The fundamental basis therefore of the judgment was that it was negligent on the part of the defendant to have only one security guard on duty on the occasion the plaintiff suffered his injury 9 Neither side called any expert to give evidence The evidence of Mr Byrne provided the only basis for the findings of negligence Mr Byrne had served in the defence forces where he had received training in restraint and self defence He had served in security in Dunne Stores for about three years originally in Clonmel and subsequently for a year and 1 2 to 2 years in Thurles There he had received procedural training There was no suggestion that he was inadequately trained for his assigned task He was cross examined about a security protocol about whose contents the evidence was to say the least fragmentary Insofar as Mr Byrne had seen a copy it was kept in Clonmel As already stated his instructions were that if he felt he was outnumbered he was to wait for help Mr Byrne s own interpretation of this provision of the protocol and he was the only witness to its contents was that he did not breach its terms by running after Colville and seeking to apprehend him he considered that he was confronting one person According to the witness the security complement at Dunnes Stores consisted of three security men himself a security manager and one part time security guard At times there would be two and at other times there would be one on duty When there were two they used two way radio He agreed that he had been unable effectively

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  • account The applicant accepts that in taking the amount of the award into account the source and rationale of the funds should not be ignored Submissions of the Respondent The respondent submits that the provisions of section 28 6 and section 28 9 are unambiguous and reflect the clear intention of the Oireachtas in enacting the Act of 2002 The requirement of confidentiality is designed to encourage those who suffered abuse in residential institutions to come forward Notwithstanding that the Circuit Family Court proceedings are in camera disclosure of the amount of the award is in clear breach of the provisions of section 28 of the 2002 Act Reliance is placed on M V v The Commission to Enquire into Child Abuse Respondent and Residential Institutions Redress Board Notice Party the High Court unreported O Neill J 7th November 2007 where having regard to terms of section 27 of the Commission to Inquire into Child Abuse Act 2000 which in its terms differs from section 28 of the Residential Institutions Redress Act 2002 as amended it was held that the obligation of confidentiality contained in section 27 1 is absolute and does not admit of any exceptions save those set out in subsection 2 of section 27 Reliance is also placed on McGreal v D P P the High Court unreported Hanna J 14th July 2008 The applicant there sought to procure evidence in statements that the complainant on a charge of rape had made to the Residential Institutions Redress Board which complaint had been disbelieved On application by the D P P the applicant s solicitor s grounding affidavit was redacted insofar as it concerned that application upon the basis that section 28 6 of the Act of 2002 prevented reference to that application The fact that the applicant had come into possession of information relating to the application to the Review Board would not make it admissible in evidence on the application for a maintenance order Asburton v Pape 1913 2 Ch 469 Wagstaffe v Wagstaffe v 1 F L R 323 is authority for the proposition that the availability of capital by way of an award of damages is a factor to be taken into account If the amount is at all to be taken into account the source and rationale for the funds should not be ignored see C v C 1995 2 F L R 171 These cases however relate to open and public awards for personal injuries unlike the award the subject matter of this application Discussion and decision Section 28 1 of the Residential Institutions Redress Act 2002 in its terms is directed to 1 The Board 2 The Review Committee 3 Persons who obtain information in the course of the performance of functions of that person under the Act The section prohibits each of those to whom it is directed from disclosing information other than the information specified in subsection 4 or subsection 5 of the section Neither subsection 4 or subsection 5 are relevant to the issues in the case stated Subsections 5A and 5B introduced into the Act of 2002 by the Commission to Inquire into Child Abuse Amendment Act 2005 section 34 h provide that section 28 1 shall not operate to prohibit the production of a documents prepared for the purposes or in contemplation of an application to the Board or a submission for a review by the Review Committee or given in evidence in such application or review or the giving of information or evidence provided or given to the Board or Review Committee to a body or other person when it or he or she is performing functions under any enactment consisting of the conducting of a hearing inquiry or investigation in relation to or adjudicating on any matter The Circuit Family Court is I am satisfied when hearing an application for a maintenance order a body or person performing functions under an enactment consisting of the conducting of a hearing and so subsections 5A and 5B apply and in consequence section 28 1 of the Act has no application such information and documents but not the fact or amount of the award may be disclosed by the Board the Review Committee and the persons to whom section 28 1 is directed to the Circuit Family Court Section 28 6 in its terms applies to any person It prohibits the disclosure of any information concerning an application or an award made under the Act that refers to any other person including an applicant relevant person or institution by name or which could reasonably lead to the identification of any other person including an applicant a relevant person or an institution referred to in an application made under the Act Section 1 of the Act defines relevant person as a person referred to in an application as having carried out the acts complained of or the institution in which the acts complained of were carried out and persons involved in the management of that institution Institution is defined in section 1 of the Act as an institution specified in the schedule to the Act Thus subsection 6 prohibits a person publishing information concerning an award that refers to any other person by name or which could lead to the identification of any other person including an applicant a relevant person or an institution For the respondent to furnish information as to the amount of the award to her would not be to publish information concerning any other person relevant person or institution by name nor would this lead to the identification of any other person relevant person or institution In short the effect of subsection 6 is that an applicant may make known the amount of an award received so long as no other person relevant person or institution is named and provided that the disclosure could not reasonably lead to the identification of any other person a relevant person or an institution Having regard to the provisions of section 5A 3 of the Family Law Maintenance of Spouses and Children Act 1976 inserted by section 18 of the Status of Children Act 1987 there is an obligation to disclose the amount of the award the source of the award may be disclosed by the recipient or if the source becomes relevant the recipient may be obliged to disclose it The proceedings in respect of a maintenance order will be in camera and there will be no further disclosure of the fact of the application or the amount of the award The clear policy of the Act of 2002 in preserving confidential information relating to applications will not be impaired by disclosure for the purposes of the proceedings in the Circuit Family Court This being the interpretation of section 28 of the Act of 2002 I would answer the first question raised on the Case Stated as follows i Whether the applicant is entitled to details of an award made by the Residential Institutions Redress Board given the provisions of section 28 of the Residential Institutions Redress Act 2002 Answer Yes Section 5A of the Family Law Maintenance of Spouses and Children Act 1976 inserted by section 18 of the Status of Children Act 1987 deals with maintenance orders in respect of a dependant child whose parents are not married to each other Section 5A 3 provides as follows 3 The court in deciding whether to make a maintenance order under this section and if it decides to do so in determining the amount of any payment shall have regard to all the circumstances of the case and in particular to the following matters a the income earning capacity if any property and other financial resources of i each parent ii the dependant child in respect of whom the order is sought and iii any other dependant children of either parent including income or benefits to which either parent the dependant child as aforesaid or such other dependant children are entitled by or under statute and b the financial and other responsibilities of each parent towards i a spouse ii the dependant child in respect of whom the order is sought and iii any other dependant children of either parent and the needs of any dependant child as aforesaid or of any such other dependant children including the need for care and attention I am satisfied that the award to the respondent by the Residential Institutions Redress Board and which award it would appear is payable in instalments pursuant to the provisions of the Residential Institutions Redress Act 2002 section 13 8 and section 13 14 inserted by the Commission to Inquire into Child Abuse Amendment Act 2005 section 34 e iv is income property or other financial resources for the purposes of section 5 A 3 The court in deciding whether to make a maintenance order is required to have regard to the same in addition to having regard to all the circumstances of the case This being so I would answer the second question on the Case Stated as follows ii Whether the court was entitled to take into account an award from the Residential Institutions Redress Board when deciding the issue of maintenance Answer Yes THE SUPREME COURT Record No 116 2010 Finnegan J O Donnell J McKechnie J IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 IN THE MATTER OF THE FAMILY LAW MAINTENANCE OF SPOUSES AND CHILDREN ACT 1976 IN THE MATTER OF THE RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 THE CIRCUIT FAMILY COURT MIDLANDS CIRCUIT COUNTY ROSCOMMON BETWEEN F McK APPLICANT and O L RESPONDENT Judgment of Mr Justice Finnegan delivered on the 28th day of October 2010 This matter comes before the court by way of a case stated from the Circuit Family Court pursuant to section 16 of the Courts of Justice Act 1947 Section 28 of the Residential Institutions Redress Act 2002 as amended by section 34 of the Commission to Enquire into Child Abuse Amendment Act 2005 provides as follows 28 1 A person including the Board and the Review Committee shall not subject to this section disclose information other than the information specified in subsection 4 or 5 that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act 2 A person referred to in subsection 1 shall disclose information so referred to for the purpose of the performance of the functions of the person under this Act 3 Documents that are a provided to or prepared by the Board and where appropriate the Review Committee or b prepared by a person for the Board or the Review Committee in the course of the performance of the functions of such person as a member of the Board Review Committee a member of the staff of the Board or the Review Committee or an adviser shall not constitute Departmental records within the meaning of section 2 2 of the National Archives Act 1986 4 The Board shall keep a record of following information a the name address and date of birth of the applicant b the name of the institution concerned c the period in which the applicant was resident at the institution and d the amount awarded to the applicant under this Act and such records shall be available to the Minister for the purposes of section 13 13 and to any party against whom proceedings are initiated contrary to section 13 12 5 Notwithstanding subsection 1 or any other provision of or an instrument made under a statute or any other rule of law a person shall disclose information other than the information specified in subsection 4 that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act to a a member of the Garda Siochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent an act or omission constituting a serious offence and b to an appropriate person within the meaning of the Protections for Persons Reporting Child Abuse Act 1998 if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent reduce or remove a substantial risk to the life or to prevent the continuance of abuse of a child 5A Nothing in subsection 1 operates to prohibit the production of a document prepared for the purposes or in contemplation of an application to the Board or a submission for a review by the Review Committee or given in evidence in such application or review to a a body or other person when it or he or she is performing functions under any enactment consisting of the conducting of a hearing inquiry or investigation in relation to or adjudicating on any matter or b such body or other person as may be prescribed by order made by the Minister when the body or person concerned is performing the functions consisting of the conducting of a hearing inquiry or investigation in relation to or adjudicating on any matters as may be so prescribed 5B Nothing in subsection 1 operates to prohibit the giving of information or evidence provided or given to the Board or the Review Committee to a a body or other person when it or he or she is performing functions under any enactment consisting of the conducting of a hearing inquiry or investigation in relation to or adjudicating on any matter or b such body or other person as may be prescribed by order made by the Minister when the body or person concerned is performing functions consisting of conducting of a hearing inquiry or investigation in relation to or adjudicating on any matter as may be so prescribed 6 A person shall not publish any information concerning an application or an award made under this Act that refers to any other person including an applicant relevant person or institution by name or which could reasonably lead to the identification of any other person including an applicant a relevant person or an institution referred to in an application made under this Act 7 The Board shall prior to the making of an order under section 3 3 determine the disposal of the documents concerning applications made to it 8 The Review Committee shall prior to the making of an order under section 14 3 determine the disposal of the documents concerning applications made to it 9 A person who contravenes subsection 1 or subsection 6 shall be guilty or an offence The matter came before the Circuit Court on the 26th day of January 2007 by way of an appeal from a District Court Maintenance Order The facts proved admitted or agreed and as found by the learned Circuit Court judge are as follows 1 The applicant and the respondent are not married 2 The applicant and the respondent are the parents of two dependant children G McK born on the 27th day of September 1996 and E C McK born on the 16th day of June 1998 3 The applicant has custody of the two dependant children who reside with him 4 The respondent is not presently paying maintenance for the support of the two dependant children 5 In these proceedings the applicant seeks maintenance for the support of the two children pursuant to the provisions of section 5A 1 of the Family law Maintenance of Spouses and Children Act 1976 as inserted by the Status of Children Act 1987 6 In the District Court proceedings it emerged that the respondent is in receipt of payments of 200 per month from the Wards of Court Office of the High Court in respect of a settlement of a claim from the Residential Institutions Redress Board 7 The District judge sought details of the amount of the settlement 8 Michael E Hanahoe Solicitors acted for the respondent in relation to her claim before the Redress Board By letter dated the 16th day of January 2006 the said solicitor stated that they were unable to divulge any information regarding the claim as there was a confidentiality requirement on each applicant to the Residential Institutions Redress Board pursuant to section 28 of the Residential Institutions Redress Act 2002 Two preliminary issues arose on the hearing before the Circuit Family Court 1 Whether the applicant is entitled to details of the award made by the Residential Institutions Redress Board 2 Whether the court is entitled to take into account the award when deciding the issue of maintenance Submissions of the Applicant The respondent has a legal and moral duty to support and maintain her children from the resources available to her The Family Law Maintenance of Spouses and Children Act 1976 section 5A inserted by the Status of Children Act 1987 section 18 provides that the court in deciding whether to make a maintenance order under the section where the parents of a dependant child are not married and if it decides to do so in determining the amount of any payment shall have regard to all the circumstances of the case and in particular to the following matters a The income earning capacity if any property and other financial resources of i each parent ii the dependant child in respect of whom the order is sought and iii any other dependant children of either parent including income or benefits to which either parent the dependant child as aforesaid or such other dependant children are entitled by or under statute and the financial and other responsibilities of each parent towards i a spouse ii the dependant child in respect of whom the order is sought and iii any other dependant children of either parent and the needs of any dependant child as aforesaid or of

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  • took a matter of seconds He described the knife at first as a long blade kind of Stanley blade he agreed to it being described as having a retractable blade and later said it was a long skinny blade a plastic handle on it and the blade flicks out so you can break the bits off it He said it was of the type used for cutting cardboard boxes open 11 In effect the defence appears to have accepted at the High Court hearing that it had been established that a knife akin to a Stanley blade was used This was distinguished from the sort of improvised weapons that prisoners devise from such normal material as can be found in the prison kitchen or bathrooms An example would be a razor blade melted into the end of a toothbrush No evidence was called to contradict the plaintiff on the nature of the knife used The severity of the lacerations sustained by the plaintiff seems at least consistent with the use of an extremely sharp blade No weapon was found on search after the incident a fact which struck Mr Outram and the learned trial judge as extraordinary 12 Mr Outram both in his report and his evidence made a number of criticisms of the security regime at Wheatfield prison It is fair to say that he also found much to praise However so far as the present appeal is concerned his central criticisms were that The system of security both at entry and within the prison was in his view inadequate Based on his single inspection visit in 2006 the system of searching at entry was inappropriately lax he made a number of criticisms a knife such as that described by the plaintiff must have come from outside the prison In addition prisoners moving from the residential area to another area of the prison should be searched both by hand and by metal detection The holding area where prisoners had to wait prior to entry to area A was on the plaintiff s account overcrowded there should not have been more than four prisoners in the area at one time Prisoners awaiting their dose of Methadone are likely to be volatile and disruptive 13 Mr Outram also thought there should have been CCTV covering the area as well as some means of raising the alarm 14 I propose to deal in the first instance with the appeal by the defendants The decision by the learned trial judge to award damages to the plaintiff was based entirely on the evidence given at the judge s invitation by Mr Outram when he had recalled him to the witness box The witness reiterated in the first place that he would not have started from the point where there were many people present in area B His direct evidence had been to the effect that there should not have been more than four Pressed to deal with a situation where there were so many he said that one officer would be the minimum and that he would have expected two officers to be there He was not asked and did not comment on the possibility that part of the injuries those to the plaintiff s lower body might have been avoided 15 The learned trial judge found that there had been a breach of duty of care in failing to place a prison officer or officers within the three central units of the Medical Centre and among the prisoners but only to the extent that such a presence would have resulted in an earlier intervention and break up of the assault This statement seems to imply that the prisoners were in the three central units and not confined to one The judge did not consider that the presence of such officers would have prevented the plaintiff s head and facial injuries but would have been likely to prevent the injuries which the plaintiff sustained to his flank and to his abdomen This conclusion did not arise from any evidence given by Mr Outram The plaintiff in his direct evidence had criticised the prison officers on the following basis they were looking standing at the gate so they could have stopped it before they got to my stomach they could have stopped it This evidence however relates to a personal criticism directed at the particular prison officers and not to the absence of an additional officer inside area B as postulated by Mr Outram on recall I cannot find any basis in the evidence upon which the judge could have reached the conclusion he did 16 Furthermore the evidence of Mr Outram appears to have been based upon two assumptions underlying the plaintiff s evidence namely firstly that there were about 20 prisoners within the area secondly that they were all within area B the gate between B and C having been locked However the conflicts of evidence on these points had not been resolved and as I have said the judge himself spoke of three central units 17 Finally this crucial and decisive evidence was given following the conclusion of all of the evidence it had never been part of the plaintiff s case In all the circumstances I consider the decision of the learned trial judge on this point to be unsatisfactory and unsupported by the evidence and I would set it aside 18 On the other hand it would not be fair to the plaintiff to dispose of the case without full and proper consideration of the case which he had advanced The High Court decision amounted to a compromise For the reasons I have given I do not think it was a satisfactory one It seems to me from a reading of the judgment as a whole and from the perusal of the transcript of the evidence that the learned judge was by no means unsympathetic to the plaintiff s case and in some respects at least was critical of the management of the prison 19 The learned judge noted that there had been conflicts in the evidence with regard to the number of prisoners present in the Medical Centre the length of time the plaintiff was in the centre and as to whether or not the separating gates between the central units were open or locked These conflicts were however highly material to the complaints advanced by Mr Outram regarding overcrowding The failure to resolve them meant that the plaintiff s complaint had not been considered on its merits 20 The learned trial judge also said that he did not consider it necessary to determine the nature of the weapon involved The nature of the weapon was central to the plaintiff s complaint On his evidence it was of a type similar at least to a Stanley knife on the evidence of Mr Outram it was appalling that such a knife should be in a prison The learned judge said that it would be unreasonable to expect or require the prison authorities to search each and every prisoner every time he exited his cell Mr Outram had not suggested that they should I have referred to his evidence above his view was that there should have been a thorough search of each prisoner on move from one area to another In this case the prisoners had moved from their cells to the caged area for administration of Methadone The judge in this way led himself to the conclusion of that the prison authorities could not have been reasonably expected to have been in a position to prevent an attack on the plaintiff 21 I do not say that the court was compelled to find that the blade was a of a Stanley knife type but where the evidence seemed to point only one way it would have been reasonable to expect the judge to give a reason for rejecting the evidence of the plaintiff Nor do I say that the court was obliged to accept the evidence of Mr Outram For the purposes of the present appeal I merely say that in order for the plaintiff s case to have been considered properly it was appropriate to resolve conflicts of evidence which were relevant Finally I do not say either that the plaintiff should be disentitled from advancing the case ultimately founded upon the evidence of Mr Outram when recalled though it was not always clear what precise criticisms he was making I would emphasise that if the plaintiff is to succeed in his claim it is obvious that he must be able to identify the precise respects in which the defendants were in breach of their duty of care and what standards they failed to meet Any criticism of the standards operated in the prison should be related to the facts That in turn may give rise to the need to resolve conflicts in the evidence 22 In all of the circumstances I am of the view that the High Court decision did not correctly address the issues For that reason I would allow the appeal of the defendants and the cross appeal of the plaintiff I would set aside the order made in the High Court and remit the case to that court for further hearing THE SUPREME COURT APPEAL NUMBER 230 2009 HIGH COURT RECORD NUMBER 2003 13989p Fennelly J O Donnell J McKechnie J BETWEEN PETER CREIGHTON Plaintiff Respondent And IRELAND THE ATTORNEY GENERAL THE MINISTER FOR JUSTICE EQUALITY LAW REFORM AND THE GOVERNOR OF WHEATFIELD PRISON Defendants Appellants JUDGMENT of Mr Justice Fennelly delivered the 27th day of October 2010 1 The plaintiff respondent was a prisoner in Wheatfield Prison on 19th January 2003 While he was in a confined area with others awaiting delivery of his needed supply of Methadone he was the victim of a sudden violent and unprovoked knife attack by a fellow prisoner The plaintiff described the knife used in a way suggesting that it was similar to a proprietary type commonly known as a Stanley knife He suffered serious wounds to his face stomach and flank He secured an award of 40 000 by the judgment of the High Court White J in respect of part only of his injuries I will refer to him as the plaintiff No question arises as to which of the various defendant appellants was responsible for the care of the plaintiff in prison I will describe them simply as the defendants 2 The plaintiff presented his claim in the High Court with the support of the expert testimony of a former governor of a number of English prisons Mr Roger Outram Mr Outram made a number of criticisms of the care of prisoners in Wheatfield principally that the system of control to prevent entry of dangerous knives into the prison was lax and that the area in which the prisoners were confined while awaiting delivery of Methadone was unduly crowded The learned trial judge found it unnecessary to determine either the nature of the knife used or the extent of the overcrowding if any He concluded that the prison authorities could not reasonably have been expected to have been in a position to prevent an attack on the plaintiff However the learned judge had on his own initiative recalled Mr Outram following the conclusion of the evidence for both parties He suggested to the witness that there should have been an additional prison officer within the area where the plaintiff was attacked The witness agreed and the learned judge held that if there had been such an additional supervising officer there would probably have been an earlier intervention which would have lessened the extent of the injuries suffered In short the plaintiff would have suffered his head and facial injuries but would probably have been saved the injuries to his flank and abdomen He awarded damages on that basis 3 These are the circumstances in which there is an appeal by the defendants against the award of 40 000 and a cross appeal by the plaintiff against the rejection of the claim as he had presented it 4 A sentence of imprisonment deprives a person of his right to personal liberty Costello J explained in Murray v Ireland 1985 I R 532 at 542 that w hen the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result including the deprivation of liberty to exercise many other constitutionally protected rights which prisoners must accept Nonetheless the prisoner may continue to exercise rights which do not depend on the continuance of his personal liberty I would say that among these rights is the right to personal autonomy and bodily integrity Thus it is common case that the state owes a duty to take reasonable care of the safety of prisoners detained in its prisons for the service of sentences lawfully imposed on them by the courts This does not amount however to a guarantee that a prisoner will not be injured see Muldoon v Ireland 1988 I L R M 367 approved by the this Court in Bates v Minister for Justice and others 1998 Prisons may as an inevitable consequence of the character of persons detained be dangerous places Prisoners are entitled to expect that the authorities will take reasonable care to protect them from attack by fellow prisoners What is reasonable will as always depend on the circumstances As the cases recognise prison authorities may have to tread a delicate line between the achievement of the objective of protecting the safety of prisoners and the risks of adopting unduly repressive and inhumane measures They must balance the protective function and possible demand for intrusive searches against the need to permit prisoners an appropriate degree of freedom of movement and human dignity Counsel for the plaintiff cited the following helpful passage from the judgment of Singleton L J in Ellis v Home Office 1953 2 All ER 149 at 154 The duty on those responsible for one of Her Majesty s prisons is to take reasonable care for the safety of those who are within and that includes those who are within against their wish or will of whom the plaintiff was one If it is proved that supervision is lacking and that accused persons have access to instruments and that an incident occurs of a kind such as might be anticipated I think it might well be said that those who are responsible for the good government of the prison have failed to take reasonable care for the safety of those under their care 5 That passage raises quite directly the principal issue which arises in the present case namely whether the attack on the plaintiff was the result of a lack of care by the prison authorities insofar as a dangerous knife came into the possession of the plaintiff s assailant 6 It is necessary at this point to return to consider the facts of the case in a little more detail 7 Between 10 am and 11 am on 19th January 2003 a number of prisoners were awaiting delivery to them of Methadone from the prison pharmacy The waiting area was some 50 to 55 long and 7 feet wide and was separated from the main adjoining corridor by a wall surmounted by bars or rails placed so as to permit observation by a prison officer in the corridor of prisoners within that area The separated area was divided in turn into four successive rectangular areas called A B C and D which came to be called cages probably because they were separated by barred gates The pharmacy adjoined area A Prisoners were admitted to area D and moved through to area B prior to admission one by one to area A which adjoined the pharmacy 8 There was controversy about whether prisoners were confined to area B approximately 7 feet by fourteen feet or had the entire of areas B C and D available This was not resolved There was also some disagreement about the total number of prisoners who were in the area The plaintiff said there were about twenty The prison officers said there were ten to fifteen 9 Within area A were two prison officers Mr David Hughes had the task of admitting one prisoner at a time from area B to area A Ms Sharon Murray was to verify identity see that the prisoner received his Methadone through a hatch from one of the prison nurses in the pharmacy and that he took it and then to allow him back to the main corridor before the next prisoner was admitted In the corridor was Prison Officer Hickey 10 The plaintiff gave evidence that he was sitting or crouching on a bench in area B There were about twenty prisoners there it was packed and the gate from area C was locked He felt something coming from behind He fell on the ground and his attacker whom he identified as Jeffrey Mitchel a fellow prisoner cut and slit his face from his nose and behind his ear into the scalp he then cut his stomach he just kept sliding the blade along my skin Following his scream for help Officer Hughes opened the gate to area A and Officer Hickey came in and dragged the plaintiff out The plaintiff said that it all took a matter of seconds He described the knife at first as a long blade kind of Stanley blade he agreed to it being described as having a retractable blade and later said it was a long skinny blade a plastic handle on it and the blade flicks out so you can break the bits off it He said it was of the type used for cutting cardboard boxes open 11 In effect the defence appears to have accepted at the High Court hearing that it had been established that a knife akin to a Stanley

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  • employees of BOC Gases Ireland Limited pursuant to the provisions of a deed of trust dated the 14th September 1970 as amended and extended b A declaration that the appellants their servants or agents have failed to comply with the provisions of a deed dated the 14th day of July 1995 governing the administration of the said Superannuation Fund and that the plaintiff was wrongly excluded from its benefits c An order requiring the appellants to accept the plaintiff for the benefits of the said scheme 11 In the statement of claim reference was made to paragraph 9 2 of the rules of the scheme which provides that if a member of the scheme is certified by a medical practitioner instructed by the company to be incapable by reason of accident or illness of performing the duties for which he is employed and shall in consequence retire from service before normal pension date he will be entitled to a pension calculated in accordance with Rule 7 by reference to his final pensionable salary and the pensionable service if he had continued in service until normal pension date provided always in the event of disagreement between the company and the member relating to the decision of such medical practitioner and based on medical grounds the question of incapacity shall be referred to another medical practitioner agreed between the company and the member or failing agreement nominated by the President of the time being of the Irish Medical Organisation and the decision of that other medical practitioner shall be final 12 In oral submissions counsel for the plaintiff submitted that he had invoked his right of appeal to another medical practitioner and that he was entitled to a second medical opinion He referred to two letters which were not before the Court which it was submitted are at the core of the claim 13 The appellants deny that he requested this reference to a second medical practitioner Paragraph 21 of the defence states It is denied that the plaintiff requested the appellants or any of them to refer the issue of the plaintiff s incapacity to work to another medical practitioner on November 12 1996 or November 17 1996 whether as alleged or at all If the plaintiff made the said requests which is denied neither the appellants nor any of them were required or entitled to comply with such a request as the plaintiff on the said dates was no longer an employee of BOC s and therefore no longer a member of the Scheme eligible to benefit from any of the entitlements envisaged by the Scheme 14 Thus an issue will be whether the plaintiff validly invoked a right to seek another medical practitioner s opinion 15 An alternative pleading and submission on behalf of the plaintiff is that Mr Monks made a representation to the plaintiff upon which he relied This submission is used as a ground in the substantive proceedings and also to explain delay Law 16 There was no disagreement between counsel as to the law to be applied In the written submissions the Court was referred to many cases including the principles set down in Primor plc v Stokes Kennedy Crowley 1996 2 IR 459 at pp 475 476 Keogh v Wyeth Laboratories Inc John Wyeth Brother Ltd 2005 2 ILRM 508 Gilroy v Flynn 2005 1 ILRM 290 Toal v Duignan Ors No 1 1991 ILRM 135 Toal v Duignan Ors No 2 1991 ILRM 140 The law was addressed recently in McBrearty a p u m not so found v North Western Health Board Ors 2010 IESC 27 where Geoghegan J with whom the other members of the Court agreed analysed the law The principles to be applied are as follows Was there inordinate and inexcusable delay The onus of establishing these matters rests upon the appellants If the delay is found to be both inordinate and inexcusable then the court is required to exercise a discretion to find the balance of justice to determine whether it would be unjust to require the appellants to defend themselves 17 No submissions were made relating to the European Convention on Human Rights The case was advanced on the established common law 18 As to delay five periods of delay were advanced I shall refer to them each specifically in the order in which they were submitted As to the time referred to in paragraphs i and ii I am satisfied that the time taken prior to the commencement of the proceedings in trying to resolve the matter through the trade union process and the Labour Court was entirely appropriate I would find no fault with such an approach Consequently I would not find this delay inordinate Even if it were inordinate it is certainly excusable Thus I would not uphold the first two grounds as being inordinate and inexcusable delay in the circumstances iii The delay between the event giving rise to these proceedings and the date of this appeal is now fourteen years Such a delay is most unfortunate and primarily would be an inordinate delay It is then a matter of considering the detail to see if it is inexcusable iv The fourth period of delay is that relating to the making of discovery from the 25th July 2003 to the 28th January 2005 being one year and nine months While there was a delay the Master did not strike out the proceedings and all the orders were made by consent Also all the orders were made against both parties both of which affidavits of discovery were filed in 2005 even though the affidavit deposed by Anthony Rice on behalf of the appellants was deposed on the 21st April 2004 This does appear to be an inordinate delay but there was fault on both sides which is not fully explained and so not clearly excused v I would consider the most significant delay to be that from the plaintiff s last step in the proceedings until the notice of trial which was a delay of over two years No reasonable excuse was given I would consider this delay inordinate and inexcusable 19 Thus it is necessary to consider the balance of justice in the circumstances of the case 20 The appellants submit that they have been prejudiced This plea is primarily based on the deaths of two purported witnesses Dr Deasy who gave medical advice to BOC in relation to the plaintiff s medical condition died in July 2005 Mr Flanagan the then managing director of BOC who acted on the basis of the advice given to him by Dr Deasy and who met the plaintiff in October 1996 and who terminated the plaintiff s employment died in January 2004 On behalf of the appellants it was submitted that they have been severely prejudiced by the failure of the plaintiff to bring the proceedings within a reasonable time as the proceedings relate to events in 1996 21 I am not satisfied that the appellants suffer any significant specific prejudice arising out of these circumstances The kernel issue in the substantive case is not the medical opinion of Dr Deasy but appears to be the alleged failure to have the medical evidence reviewed by a second doctor Thus the medical opinion of Dr Deasy is not at the core of the issue Nor does the death of Mr Flanagan give rise to such prejudice as would be unjust to the appellants to proceed with their defence As to the issue of representation alleged to have been made to the plaintiff by Mr Monks Mr Monks although retired is available In all the circumstances in view of the issues raised in the plaintiff s claim any prejudice to the appellants is not such as to outweigh the right of the plaintiff to have his claim heard 22 The case appears to turn on the issue of the plaintiff s claim that he was entitled to a review of the medical evidence by another medical practitioner Two letters are said to be critical to this issue They have not been before this Court However the situation is said to be that the case will turn on this issue the two letters and on other relevant evidence There is thus a net issue the plaintiff claims that he was entitled to a review by a second medical practitioner and has lost that opportunity In considering the balance of justice this legal issue in all the circumstances of the case is not such that it would be unjust to require the appellants to defend themselves 23 In light of the decision I have reached I do not consider it appropriate to analyse further the proposed proceedings 24 In all the circumstances of this case on the issues raised I am satisfied that the balance of justice lies in permitting the plaintiff proceed with his case Conclusion 25 For the reasons given I would dismiss the appeal Clearly this case should be given an early trial as was directed by the learned High Court judge in October 2007 Consequently I would request counsel to mention the case in the relevant High Court list as soon as possible so that a date may be fixed for the trial THE SUPREME COURT Appeal No 286 07 Denham J O Donnell J McKechnie J Between Edward Hiney Plaintiff Respondent and Barry Flanagan Gerard J Donovan Bernard Hudson Bruce Doolan Desmond Reid and BOC Gases Ireland Limited Defendants Appellants Judgment delivered on the 27th day of October 2010 by Denham J 1 On the 22nd October 2001 Edward Hiney the plaintiff respondent referred to in this appeal as the plaintiff had a plenary summons issued on his behalf The defendants in the plenary summons were named as Barry Flanagan Gerard H Donovan Bernard Hudson Bruce Doolan Desmond Reid and BOC Gases Ireland Limited Barry Flanagan has died since the issuing of the proceedings The defendants appellants are referred to as the appellants The appellants were sued by the plaintiff as trustees appointed to govern the administration of the Superannuation Fund of BOC Gases Ireland Limited for certain employees of the company 2 The appellants brought a motion to dismiss the plaintiff s case seeking an order dismissing the plaintiff s claim against the appellants pursuant to the inherent jurisdiction of the Court and or pursuant to the Rules of Court by reason of inordinate and inexcusable delay by the plaintiff in the commencement and prosecution of the proceedings which delay it was submitted has prejudiced the appellants such that the balance of justice requires that the claim be dismissed Further or in the alternative the appellants sought an order dismissing the plaintiff s claim on the grounds that it would be contrary to natural and constitutional justice and or the rights of the appellants as guaranteed by Article 6 of the European Convention on Human Rights 3 The motion was refused by the High Court The learned High Court Judge delivered an ex tempore judgment on the 6th July 2007 A note of the judgment signed by counsel for the appellants and by counsel for the plaintiff has been approved by Lavan J The learned trial judge stated that he was not prepared to dismiss the proceedings However he indicated that he would direct an early trial 4 On the 1st August 2007 the solicitors acting on behalf of the appellants filed a notice of appeal setting out ten specific grounds of appeal 5 This appeal was listed for hearing and was heard on the 7th October 2010 6 Written and oral submissions were before the Court on behalf of the plaintiff and the appellants 7 In the written submissions on behalf of the appellants a chronology of events was set out Counsel for the plaintiff agreed with the chronology subject to the addition of the letters written regarding paragraph 9 2 of the Rules of the BOC Gases Ireland Limited Pensions Scheme 1992 hereinafter referred to as the scheme from the plaintiff and the fact that the orders for discovery were made against both parties 8 The chronology of events is Date Event 2 nd October 1995 Plaintiff went on sick leave from work 1 st July 1996 Plaintiff was notified of Dr Deasy s views that he was not a candidate for an ill health pension and requested to return to work and was informed of the possibility of termination of employment 17 th October 1996 Plaintiff met with Barry Flanagan now deceased and Paul Monks now retired Plaintiff was informed of appellants view that there was no reason for his absence and of the requirement to return to work by October 29 th 1996 21 st October 1996 Letter from Barry Flanagan reiterating the requirement to return to work by October 29 th 29 th October 1996 Plaintiff failed to return to work and was written to by Mr Monks terminating his employment November 1997 Plaintiff pickets BOC and the dispute is referred to the Labour Court February 1998 Labour Court recommendation that BOC examine the question of the Plaintiff s entitlement to the benefit of the ill health pension scheme 15 th May 1998 Company sets out its position having conducted a review Plaintiff not an employee and therefore not qualified for the ill health pension 8 th February 1999 Correspondence between SIPTU the company and the Labour Court as to whether or not the company had implemented the Labour Court recommendation December 1999 Decision of independent mediator to the effect that the Labour Court recommendation had been implemented in full May 2000 Proposed arbitration under the auspices of the Labour Court not proceeded with 29 th October 2001 Plenary summons issued 27 th February 2002 Statement of claim delivered 30 th October 2002 Notice for Particulars raised 16 th January 2003 Replies to Particulars 29 th January 2003 Defence 18 th July 2003 Particulars arising out of Defence raised 25th July 2003 First discovery order against the plaintiff allowing eight weeks for the making of discovery 30 th July 2003 Replies to Particulars of Defence January 2004 Mr Flanagan dies 2 nd July 2004 Order extending time for the making of discovery costs to the appellants 28 th January 2005 Plaintiff s affidavit of discovery on foot of Master s order of 25 th July 2003 3 rd February 2005 Order made on foot of plaintiff s second motion to strike out for failure to make discovery awarding costs to the appellants July 2005 Dr Deasy dies 16 th August 2005 Plaintiff s solicitor s letter responding to queries raised in relation to discovery 10 th July 2007 Notice of Trial served 9 The appellants claim that there were five periods of delay being i Delay between the date of the communication of the decision regarding the entitlement to the ill health pension scheme and the institution of proceedings 5 years and 4 months ii Delay between the date of the termination of employment and date of institution of these proceedings 5 years iii Delay between the event giving rise to these proceedings i e refusal of the pension and the date of the hearing of this appeal now 14 years iv Delay in making discovery from 25th July 2003 to 28th January 2005 being 1 year and 9 months v Delay from plaintiff s last step in the proceedings until notice of trial 2 years and 6 months Background 10 A plenary summons was issued on behalf of the plaintiff on the 22nd October 2001 In the plenary summons the plaintiff claimed inter alia a A declaration that the plaintiff is eligible for acceptance into the Superannuation Fund for certain employees of BOC Gases Ireland Limited pursuant to the provisions of a deed of trust dated the 14th September 1970 as amended and extended b A declaration that the appellants their servants or agents have failed to comply with the provisions of a deed dated the 14th day of July 1995 governing the administration of the said Superannuation Fund and that the plaintiff was wrongly excluded from its benefits c An order requiring the appellants to accept the plaintiff for the benefits of the said scheme 11 In the statement of claim reference was made to paragraph 9 2 of the rules of the scheme which provides that if a member of the scheme is certified by a medical practitioner instructed by the company to be incapable by reason of accident or illness of performing the duties for which he is employed and shall in consequence retire from service before normal pension date he will be entitled to a pension calculated in accordance with Rule 7 by reference to his final pensionable salary and the pensionable service if he had continued in service until normal pension date provided always in the event of disagreement between the company and the member relating to the decision of such medical practitioner and based on medical grounds the question of incapacity shall be referred to another medical practitioner agreed between the company and the member or failing agreement nominated by the President of the time being of the Irish Medical Organisation and the decision of that other medical practitioner shall be final 12 In oral submissions counsel for the plaintiff submitted that he had invoked his right of appeal to another medical practitioner and that he was entitled to a second medical opinion He referred to two letters which were not before the Court which it was submitted are at the core of the claim 13 The appellants deny that he requested this reference to a second medical practitioner Paragraph 21 of the defence states It is denied that the plaintiff requested the appellants or any of them to refer the issue of the plaintiff s incapacity to work to another medical practitioner on November 12 1996 or November 17 1996 whether as alleged or at all If the plaintiff made the

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  • occurred here The Attorney General had never been involved in the case and had not been added as a party or indeed given any notification or opportunity to argue the issue before costs were awarded against him That order was plainly bad Here however not only were the councillors joined prior to the making of any costs order they had also been involved in the substantive proceedings Indeed the burden of the High Court judge s order in this case was that the Appellants were in truth the Applicants in the proceedings McIlwraith v Fawsitt says nothing about such circumstances Indeed it is perhaps implicit in the formulation of Finlay C J just quoted that had the Attorney General had an interest in the proceedings whether a party or not it might have been appropriate to order costs against him Here of course the councillors were a party to the proceedings having been joined and these were proceedings in which they clearly had an interest and indeed had initiated This interpretation of the judgment in McIlwraith v Fawsitt is only a very small straw in the wind but it does lead to a consideration of the question of whether there exists a broader jurisdiction to direct that the costs of proceedings should be borne by a person not otherwise or formally a party to the proceedings This was a topic touched on only fleetingly by the Appellants in their submissions and not addressed by the Respondent at all The issue has been raised in Irish litigation in the context of a claim for costs against an insurance company which had supported unsuccessful litigation in the name of its insured who himself was not in a position to discharge the order of costs made against him The issue has raised in Curran v Finn 2001 4 IR 248 but not litigated to conclusion there That case has been the subject of the comment by Dr John White in 2003 38 Irish Jurists 352 That article surveys recent decisions in the United Kingdom the most important of which are Aden Shipping Ltd v Interbulk Ltd 1986 AC 965 and Murphy v Young Co Brewery 1997 1 All ER 518 The issue has also been discussed perhaps more appositely in Australia in Forrest Pty Ltd v Keen Bay Ltd 1991 4 ACSR 107 and affirmed sub nom Knight v FP Special Assets Ltd 1992 107 ALR 585 It also appears the issue has received further consideration both judicial and legislative in Australia The problem is by no means easy and since it may turn on a precise interpretation of the provisions of the Judicature Act and the Rules of the Superior Courts and since we have not heard argument on this issue I do not wish to express any view upon the existence of any such broader jurisdiction to direct that non parties should bear the cost of litigation The existence however of such proceedings in other jurisdictions points to the possible injustice that otherwise might be created if in appropriate cases it was not possible to fix an individual costs in circumstances where that was the appropriate solution However this case is as I have already observed much narrower I am content to rest this judgment upon the existence of the jurisdiction to identify the true party in litigation which has been conducted wrongly in the name of another The next argument advanced by counsel on behalf of the Appellants was ingenious It was argued that the High Court had proceeded on an entirely false basis namely that the County Manager was the only person who could lawfully authorise the commencement of proceedings on behalf of the Council It was argued however that s 3 of the Borough Funds Ireland Act 1888 authorised the commencement of proceedings by Resolution of the Councillors and that the 1940 Act which established the management system identified the exercise of power under s 3 as a reserved function to be performed by the members of the Council Section 3 of the Borough Funds Ireland Act 1888 provides When in the judgment of the governing body in any district it is expedient for such governing body to promote or oppose any local or personal bill or bills a in parliament or to prosecute or defend any legal proceedings necessary for the promotion or protection of the interests of the inhabitants of the district b it shall be lawful for the first governing body to apply the borough fund borough rate or other public funds or rates under the control of such governing body to the payment or the costs and expenses attending the same It will be noted that the section itself only deals with the payment of funds but the Appellants point to a footnote in Street that The present Act does not in terms confer power to engage in legislation or litigation It provides only for costs Possibly the distinction is unreal The Appellants point out that in s 17 of the Local Government Ireland Act 1898 the powers conferred on a governing body by the Borough Funds Ireland Act 1888 were extended to County Councils The chain is completed by the provisions of the second schedule to the 1940 Act which identifies the reserved functions of the County Council and includes at paragraph 7 The powers conferred by the Borough Funds Ireland Act 1888 in relation to promoting or opposing legislation or in relation to the prosecution or defence of any such legal proceedings as are mentioned in section 3 of the said Act The argument however is put rather tentatively in the Appellants submissions It is said that It is not accepted that the suggestion in the learned trial judge s judgment that it was a matter for the County Manager to issue proceedings was necessarily correct In fact there are good grounds for contending it is submitted that the decision is one that may be made at least in relation to matters that are non executive functions by the elected members This it will be noted falls somewhat short of a positive assertion Counsel for the Appellants cheerfully acknowledges that if this argument is correct there has been a general misconception on the part of local authorities and their advisers as to the manner in which proceedings should be initiated If indeed a resolution by councillors has been the legal basis for the initiation of proceedings by a local authority since 1940 notwithstanding the existence of the City and County Management Act then it is more than surprising that it has not been adverted to somewhere either in text books or commentary or in the extensive litigation that has been engaged in by local authorities since that time I would be extremely reluctant to seek to resolve this issue on the limited factual and legal basis upon which it is presented in this court particularly because it has no wider significance than the resolution of this case since by the Act of 2001 it appears clear that legal proceedings can only be initiated by a decision of the County Manager something which indeed accords with the practice which appears to have applied prior to 2001 In any event I do not think that the argument can properly be raised by the Appellants in this case In the first place it was not raised at all in the High Court Second and even more formidably from the Appellants point of view it does not appear to have been adverted to by the councillors when during July and August they passed the different motions in relation to this matter Third and perhaps as a consequence of the foregoing none of the motions passed by the councillors purport to authorise the initiation of legal proceedings in the name of the Council The most relevant motion that of the 28th of August was clearly directed under s4 towards the discharge of the management function which could in appropriate circumstances be directed by the members of the County Council under that section Thus even if this Court were to hold with the Appellants argument on the meaning of the Borough Funds Act and its place in local authority law after 1940 it still could not avail the Appellants The truth is that when these proceedings were issued there was no resolution of any description authorising them to do so The only extant resolution that of the 28th of August was plainly an inadequate basis on any view of the law for the initiation of proceedings by the councillors Finally the Appellants fall back on a plea that the Court ought not to have distinguished their role from that of the other councillors They argue that these proceedings were supported by the other councillors collectively and while the proceedings were in being no dissenting voice was raised within the County Council On the contrary as is set out above on occasions some councillors did seem to refer to the proceedings with some approval It must have been plain to all and sundry that these were proceedings which had not been initiated by either the County Manager or the County Secretary It follows it is argued that the general body of councillors were entirely supportive of these proceedings and that the Court was wrong to seek to differentiate between the three councillors who appear to have given the relevant instructions and those other councillors who were broadly supportive of the proceedings The Appellants point with some merit it must be said not only to the proceedings in the Council on the 10th December 2000 but also to the formulaic nature of the affidavits sworn by the councillors It is pointed out that the remaining councillors in seeking to exculpate themselves seek to deny something which is not alleged Each of the councillors goes to some lengths to say that they have not given instruction that proceedings be commenced on their behalf as individuals They do not say however if they authorised or supported proceedings in the name of the County Council As counsel for the Appellant observed success has many fathers and failure is an orphan There is considerable difficulty in this matter because the investigation of the circumstances in which the proceedings were initiated only came into focus when the proceedings themselves had already been lost and the only live issue was liability for costs As I have observed earlier it is interesting to speculate as to the likely attitude of the relevant councillors had this inquiry commenced earlier in the process and while it still appeared possible that the proceedings would succeed There is no doubt that the scramble away from the disaster of these proceedings has been less than edifying It is also remarkable that notwithstanding a proliferation of affidavits none of the councillors appeared to address the critical question In truth the liability for costs arose in this case because after the motion of the 28th August 2000 and when it became clear management was not going to initiate proceedings the step was taken and once again the passive voice is appropriate of initiating proceedings notwithstanding the fact that the motion had not achieved it stated purpose That fateful step gave rise to the proceedings and consequently a potential liability for costs Yet none of the councillors address what it is they knew during the period between the 28th of August motion and the 7th of September initiation of proceedings in respect of that decision However this absence of information was not confined to the councillors who succeeded in exculpating themselves It is even more striking in my view that the three councillors who were undoubtedly involved in the decision to initiate the proceedings have not explained their conduct Were they aware of the fact that the Manager was not going to obey the motion It would appear they must have been Were they aware therefore that the motion on its face could not authorise the separate initiation of proceedings On what basis did they instruct the initiation of proceedings Why if as is hinted in the affidavits the decision was taken because of the time pressure created by the time limit for challenging the planning permission did they not seek to have their actions ratified subsequently by the remaining members of the Council Why did they instruct or at least permit the solicitor to claim privilege in respect of their identities Why if did they not accept the version of events presented by the remaining councillors did they not seek to cross examine those councillors in the High Court The Appellants affidavits are bereft of information in relation to these matters We have not been given any satisfactory explanation for the conduct of the Appellants It is very hard not to come to the conclusion that these proceedings were formulated in the way they were precisely to avoid any risk of individual liability for costs and to seek ensure that the costs would be borne by the County Council and thus the rate payers and the tax payers more generally That in itself is not a particularly appealing basis upon which to construct a claim for the exercise of a discretion in favour of the councillors There is however no doubt that the proceedings and everything in relation to them have been a disaster for all concerned The High Court Judge has also held that however misguided and frustratingly obstructive the Appellants may have been they were acting bona fide when they initiated the proceedings This is a significant factor in their favour Furthermore the length of the proceedings is truly extraordinary It seems particularly harsh that the Appellants should have to pay the full costs of the lengthy proceedings in respect of costs much of which was taken up by other councillors seeking to absolve themselves from liability and indeed succeeding in obtaining costs against the Manager Furthermore the course of these proceedings illustrates the great difficulty in seeking to pursue in satellite litigation the question of liability for costs There is a risk amply illustrated in this case that the satellite litigation will dwarf the original issue However there are a number of factors which lead me to the conclusion that the Appellants here cannot escape all liability for some part of the utterly wasteful and expensive course which after all they initiated In the first place they have not frankly acknowledged what it is they did or explained why they did it Second in commencing these proceedings they sought to target the County Manager in circumstances where had the proceedings succeeded his position both professional and personal could have been extremely difficult It is particularly unattractive that they sought to do so in circumstances where they sought to protect themselves from the costs then being incurred on both sides Finally and perhaps most tellingly the proceedings were initiated heedless of the costs that they were forcing a citizen and rate payer to incur and the damage that was being done to his business Mr Byrne who it might be noted has hardly figured in the narrative so far had an entitlement to have his application for planning permission determined one way or another on planning criteria Instead he found himself embroiled in complex expensive and protracted litigation which prevented him from being able to commence a business which he had sought to pursue That loss is irrecoverable It is apparent that no thought was given to seeking to separate the councillors squabble with the County Manager from the question of the entitlement of Mr Byrne to planning permission In the circumstances Mr Byrne has appealed the order made in his favour against the three Appellants Understandably he does not wish to pursue individuals and prefers the original order made in his favour against Wicklow County Council In this regard he has in my view both practical and legal merit There was I think no basis for amending the order made in his favour Furthermore Mr Byrne was the one person who could legitimately identify Wicklow County Council whatever its constituent parts as the source of all his difficulties In the circumstances I would allow his appeal and substitute an order that he should be entitled to his costs against the Respondent who is in this respect indemnified by the Council As for the Appellants claim to set aside in its entirety the order for costs made against them in favour of the Respondent it does not appear to me for the reasons already set out above that the there is legal merit in their claim Furthermore I consider that the trial judge was entitled to distinguish between the position of the three Appellants and the other county councillors However in all the circumstances and given the extraordinarily confused circumstances of this case both legal and factual and perhaps more particularly in acknowledging the fact that as the trial Judge held the Applicants were acting at all times bona fide in the belief that they were entitled to do so in their capacity as local representatives I have come to the conclusion that the quantum of the costs should be reduced somewhat and that the Appellants should be directed to pay the Respondent s costs on the basis of a two day hearing when such costs be taxed in default of agreement I would also propose subject to the submissions of the parties to make no order as to the costs of the proceedings in this court other than in respect of the Notice Party Mr Byrne The end result will be that the County Council will have to bear the Respondent s costs other than the two days costs which he is entitled to recover against the Appellants and also the costs of the successful county councillors and the costs of Mr Byrne For their part the Appellants will have to pay the two days costs and may have incurred their own costs in defending these proceeding This is an undoubtedly a very sorry situation from the point of view of all concerned It should act as a salutary lesson to those who insist on seeking to litigate matters of supposed principle particularly when they seek to do so with other people s money THE SUPREME COURT 268 270 271 03 509 04 24 05 313 09 Hardiman J Fennelly J O Donnell J Between THOMAS CULLEN PATRICK DORAN AND NICHOLAS KELLY Applicants Appellants and THE WICKLOW COUNTY MANAGER Respondent and AN BORD PLEANALA AND ANDREW BYRNE Notice Parties Judgment delivered by O Donnell J on the 30th day of July 2010 It is difficult to credit even now that virtual civil war raged in Wicklow County Council in the summer in the year 2000 over a proposal to convert a milking parlour into a pet crematorium at Redcross County Wicklow That dispute has followed a long tortuous and costly path to this Court almost ten years later The issue which was argued in this court over two days was the question of the liability for the costs of this protracted litigation Section 4 of the City and County Management Amendment Act 1955 Nominally the issue in dispute was the question of the grant or refusal by the planning authority Wicklow County Council of the planning permission sought But the dispute which was ignited by the planning application also had its roots in a legal issue which could be traced to what has been described as the unique form of local governance first introduced into Ireland in 1929 in Cork and made of general application by the City and County Management Act 1940 It is reasonably well known that the 1940 Act grafted onto the local government system created by the Local Government Act 1898 a system of management by a professional executive headed by a county manager who could only be removed with the concurrence of the Minister for Local Government The Act divided the functions of a local authority into those reserved functions to be carried out by the elected members and executive functions defined somewhat unhelpfully by s 17 of the 1940 Act as any other function to be performed by a local authority The division was not however exclusive Section 4 of the City and County Management Amendment Act 1955 permitted the elected representatives to give a binding direction to the Manager as to the exercise by him of any executive function of the Council That somewhat controversial section is complex both as a matter of procedure and substance It required that a valid resolution had to be signed by three members and had to be considered at a special meeting which was on a specified day not less than seven days after the notice The motion had to be passed by a majority constituting at least one third of the total members of the council If the motion was returnable for the day of an ordinary meeting it was to be dealt with before any other business The Manager was obliged to comply only if and when and so far as money for the purpose is or has been provided Subsection 9 of section 4 provided that any section 4 resolution could not be general in nature Any such purported resolution would be void Subsection 10 provided for the resolution by the Minister for Local Government of any dispute between the elected members and the Manager as to whether a resolution contravened subsection 9 Similarly subsection 11 prohibited section 4 resolutions from purporting to apply to the health functions of a local authority and subsection 12 again provided that any dispute in this regard would be determined by resort to a Minister of Central Government in this case the Minister for Health It is apparent from the structure of s 4 that it was intended to be exercised only exceptionally In the event the power was exercised extensively and as Mr Justice O Hanlon observed in P F Sharpe and Grove Developments v Dublin City and County Manager and Dublin County Council 1988 IR 701 excessively While the initial division of local authority powers and functions into reserved and executive functions was bound to give rise to some friction and dispute the existence of s 4 and its statutory predecessor gave rise to the potential for even more conflict between elected members and the executive of any local authority since it gave the elected members the power to override the executive but only if the very technical procedural provisions of the section were complied with It is to be noted that subsections 10 and 12 provided for a limited dispute resolution procedure but in the event disputes have arisen such as that which occurred in this case which did not fall within subsections 10 or 12 In 1981 the Department of the Environment issued a guide to local government for councillors In relation to s 4 it stated while the law must make a precise division of functions so that responsibility for their exercise may be clearly defined it was not the purpose of the management system that the elected members and the manager should act without reference to each other Both classes of functions are functions of the local authority and the fact that the executive ones are undertaken by the manager is intended to provide the elected body with an experienced whole time administrator for the prompt and efficient discharge of day to day business without making an undue demand on the time of the elected members The sensible message of this advice is that the system of local government required an element of cooperation between the appointed manager and the elected councillors This message was it appears lost on Wicklow County Councillors and especially the Appellants during the summer of 2000 A number of developments which might not have been anticipated either in 1940 or 1955 made the operation of s 4 even more difficult First the functions of local authorities expanded both in range and complexity and in particular the local authority obtained extensive powers in the field of planning a new and comprehensive system for which was established under the Local Government Planning and Development Act 1963 The area of planning law has become very important extensive and highly technical It is also one of the most important aspects of their functions in which local authorities continue to have impact upon their areas Use of the blunt instrument of s 4 in the field of planning is both difficult and controversial At the same time one of the most distinctive developments of the law in the latter part of the 20th century in this jurisdiction has been the significant expansion and development of the law of judicial review of administrative action In the event the fact that s 4 was directed to any particular act matter or things specifically mentioned in the resolution which the manager can lawfully do or effect to be done emphasis added was pregnant with possibilities not all of them helpful or attractive or necessarily anticipated in 1955 The leading case on the application of s 4 of the 1955 Act and indeed its application to the law on planning was P F Sharpe and Grove Developments v Dublin City and County Manager and Dublin County Council That case in itself was quite complex There the applicant developer had applied for planning permission to develop sites for housing in Lucan very close to the then dual carriageway carrying traffic westwards out of Dublin One of the provisions of the permissions precluded access direct to that road The developer having concluded that it would be difficult if not impossible to interest the public in houses without such access applied for permission for a slip road accessing the dual carriageway The County Engineer and the roads department recommended refusal of permission on safety grounds However the Council passed a s 4 resolution directing the grant of permission The County Manager refused to comply with the resolution He was advised by the law agent that it would not be lawful to grant permission in the face of the reports from the County Engineer and the roads department That advice had not been available to the elected representatives at the time of the passage of the s 4 resolution The County Manager accordingly refused permission considering that he was not bound by the s 4 resolution The developer sought certiorari to quash the Manager s decision and mandamus to direct him to grant the permission sought in accordance with the s 4 resolution In the High Court the developer succeeded Mr Justice O Hanlon held that the s 4 resolution could validly be made in respect of planning decisions something which up to then had been doubted that although in the case of an obvious and patent illegality the manager would be not only entitled but duty bound to refuse to comply with any such direction and that neither the existence of the advice of the roads department and county engineer nor the subsequent advice of the law agent rendered any such decision one of patent illegality It was as a matter of law open to any deciding body to disregard the expert advice given to it since otherwise the executive advisors would become the decision makers rather than the body upon which that duty was imposed by statute In the event he did not feel able to resolve the question whether the Council was justified in departing from its expert advisers considering that that was a matter of planning properly to be determined on appeal by An Bord Pleanála Nor could he conclude that the permission would be unlawful since that he considered would require a demonstration that a traffic hazard in the nature of a public nuisance would be created if the permission was granted The evidence did not in his view allow him to make such a determination and accordingly he concluded that the County Manager was not entitled to refuse to obey the s 4 resolution However he considered that the County Council proper rather than the County Manager was the appropriate Respondent and accordingly joined the Council as Respondent Furthermore he agreed that the Applicants had been entitled to seek judicial review without pursuing the alternative remedy of an appeal to An Bord Pleanála since he considered that the Board had no jurisdiction to consider the legality of the actions of the County Manager The decision was reversed in part by the Supreme Court The Court agreed that s 4 resolutions could validly be passed in respect of a planning matter The Supreme Court held however that the decision of the councillors was invalid because the court considered that the proposed development would contravene the development plan and accordingly that the special procedure under s 26 3 c of the Local Government Planning and Development Act 1963 was required On this somewhat narrow ground the Appellant succeeded The case therefore illustrated at the very outset of this line of jurisprudence the difficulty in predicting the view a court would take of the legality of any s 4 resolution In respect of the reasonableness of the Council s resolution the court recorded that it was accepted that having regard to the decision of this court in The State Keegan v The Stardust Compensation Tribunal 1986 IR 642 if the decision of the elected members of the council to pass the resolution was unreasonable within the meaning laid down in the judgments in that case that the decision would be illegal and invalid and consequently need not be obeyed by the county manager This apparently innocuous observation born it appears of a concession and combined with the reference in the High Court to a manager being duty bound to disobey a patently invalid motion expanded significantly the potential bases upon which it might be contended that a s 4 resolution was unlawful and has given rise to considerable litigation Sharpe finds echoes in this case in other ways as well It seems clear that that case was the template for the procedure followed in these proceedings of nominating the County Manager as the Respondent and seeking judicial review of the Council decision made by the County Manager before and in preference to an appeal to An Bord Pleanála While this was perhaps logical it meant that there was considerable pressure to act speedily in the interim period between the contested decision based on a s 4 resolution and the expiry of time for the appeal to An Bord Pleanála The decision in Sharpe led to further complications Whereas it appears from the judgment of O Hanlon J in the High Court that hitherto there had been few if any examples of county managers refusing to comply with a s 4 resolution the decision in Sharpe gave rise to a number of such refusals and consequently cases in which the High Court was invited to determine whether the manager was entitled to refuse to comply with the s 4 resolution on the grounds that the relevant resolution was invalid Indeed in the aftermath of Sharpe in the case of every s 4 resolution a manager was obliged to form a view as to the validity of the resolution not merely by reference to objective procedural criteria which might give rise to the patent illegality contemplated by O Hanlon J but by reference to a more contestable ground such as irrationality or the closely related grounds of taking into account irrelevant matters or the failure to take into account relevant considerations When it is recalled that the court in Sharpe had emphasised that not only had the planning process become even more technical and complex but that any decision taken was one which had to be addressed judicially whether by the manager or by the council members it is clear that there was considerable scope for challenge to any decision in the planning area made by the councillors pursuant to s 4 and correspondingly increased opportunity for friction between the management and elected representatives Observations on Sharpe vs Dublin City and County Manager However Sharpe was merely the backdrop to the present proceedings and was not subject to any extended analysis in the course of the hearing Accordingly it is not appropriate to address it in any further detail here It is a matter however that might repay reconsideration both judicial and legislative since there is in my view in principle little to be gained by constituting the executive of the local authority as a shadow court of judicial review and much to be lost in increased stress upon the executive and its advisors in respect of the validity of s 4 procedures and increased aggravation to elected members in seeing their decisions in effect quashed by the executive Ironically it might also be said that s 4 motions now s 140 of the 2001 Act are less potentially harmful in the area of planning than in any other area of the local authority function since there is an independent and relatively rapid appeal process to An Bord Pleanála where the decision is to be addressed on the basis of proper planning and development and where the s 4 motion carries no particular weight other than the unintended one that it perhaps serves as a warning light that the decision made deserves scrutiny Indeed one author has suggested that in respect of planning decisions it may be that in practice the provision is inoperable because of the impossibility of obtaining a decision from the elected members of the planning authority which may be said to have been reached in a traditional manner taking into account all relevant considerations Galligan Irish Planning Law and Procedure p 220 Accordingly I am not convinced that there is much benefit in asserting an entitlement and even a duty on County Managers to refuse to obey s 4 motions which the manager considers or more probably is advised to be invalid on any one of the myriad grounds upon which administrative action may now be impugned It seems to me that it puts the County Manager in a particularly invidious position where he is obliged to choose between two opposing legal duties the statutory duty to comply with a valid s 4 motion and the Sharpe derived entitlement if not duty to refuse to obey an invalid motion The difficulty is that invalidity is a relative and not an absolute concept and is furthermore dependant upon court determination something which is by definition not available to a County Manager when he or she receives a s 4 motion As Lord Radcliffe perceptively observed in Smith v East Elloe Rural District Council 1956 AC 736 at 769 an Act bears no brand of invalidity upon its forehead Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset it will remain as effective for its ostensible purpose as the most impeccable of orders Similarly Craig Administrative Law 1993 page 390 observes It is difficult to see how if there was no challenge it would be possible to say that the decision was ultra vires at all The position has now been reached where it may be said that an invalid act is an act which a Court will declare to be invalid As Professor Wade observed the truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances and it might be added at the right time Thus it has been observed by Lewis Judicial Remedies in Public Law 3rd Edition page 187 nullifying is a description of what courts do when invalidity is properly established and the courts consider it appropriate to intervene It is at

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  • extend to the father who is not a guardian of the infant and for this purpose references in this section to the father or parent of an infant shall he construed as including him 31 Thus the natural father has the right expressly conferred by statute to apply to be appointed as guardian of his child and an independent right to apply for orders granting him custody or access The court hearing any such application is obliged by law to treat the welfare of the child as the first and paramount consideration 32 A court when considering an application of a natural father to be appointed as guardian will have regard to all the circumstances of the relationship which exists between the father and the child It is well known that there is a potentially enormous variation in such relationships ranging from the position of the father of a child conceived as the result of casual or commercial intercourse or even rape where the rights might well be so minimal as practically to be non existent to the situation of a child born as the result of a stable and established relationship and nurtured from the commencement of his or her life by the father with the mother in an environment bearing all or almost all of the characteristics of a family founded on marriage when the rights would be very extensive indeed 33 Thus the courts recognise the blood link between a natural father and his child as an important element which establishes a biological relationship but which does not without more confer any rights on the natural father The strength of that relationship will vary in accordance with the extent to which the father is or has been actively engaged in the care nurture education and upbringing of the child The relationship must be judged by a court in the light of all the circumstances of the case but always subject to the overriding consideration of the best interests of the child The law grants to the natural father a right to apply to the court the court must consider the extent of his rights as well as those of the mother and of the child Recognising the existence of the biological relationship between the father and the child the law grants to the court the power to regulate and control the scope and ambit of that relationship in an application for guardianship or custody on the part of the natural father Thus a natural father has no rights of custody in Irish law in the absence of a court order granting them For the sake of completeness it should be said that it follows that a natural father has no right to determine the place of residence of his child save as may be granted to him pursuant to a court order 34 It follows that as a matter of Irish national law the appellant having failed to secure or even apply for an order granting him custody on 25th July 2009 had no rights of custody in respect of the three children This Court would so hold for the purposes of Article 5 a of the Hague Convention independently of the effect of Regulation No 2201 2003 It would accordingly respond to the proceedings brought at the request of the English Court by saying that the children were not wrongfully removed from Ireland on 25th July 2009 35 The Irish courts in the interpretation and application of the Hague Convention have as the law stands declined to recognise as amounting to rights of custody under the Hague Convention the inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character though not yet formally recognised or granted by law 36 In the interpretation and application of the Irish law on rights of custody the courts will as already stated do so in the light so far as possible of Article 8 of the European Convention on Human Rights and of any relevant judgments of the European Court of Human Rights Both in the High Court and in argument before the Supreme Court the respondent relied on the decision of the European Court of Human Rights in Guichard v France 2nd September 2003 ECHR 56838 00 2003 ECHR 714 The Supreme Court has noted that the European Court of Human Rights took account of the fact that the natural father in that case had not made use of the opportunity provided for by the French Civil Code to share parental responsibility by making the appropriate application to the guardianship judge 37 It is the view of the Supreme Court that nothing in the jurisprudence of the European Court of Human Rights suggests that the provisions of Irish law with regard to the rights of custody of a natural father in respect of his child are incompatible with the Convention The Supreme Court notes in particular the recognition by that Court of the legitimacy of a requirement of national law that effect must have been given to a claimed right of custody in the form of an order of a court The Supreme Court is of the view in the light of the infinite variation of extra marital relationships and consequent relationships with children that the requirement for a court order to give legal force to the right of custody of a natural father is necessary and appropriate and not disproportionate to the objective of protection of the best interests of the child 38 Accordingly the Supreme Court remains satisfied that the appellant did not have rights of custody in respect of his children for the purpose of Article 5 of the Hague Convention on 25th July 2009 39 The Supreme Court recognises however that the definition of custody rights for the purpose of applications for the return of children on the basis of the Hague Convention is now contained in Article 2 9 of Regulation No 2201 2003 which provides the term rights of custody shall include rights and duties relating to the care of the person of a child and in particular the right to determine the child s place of residence Emphasis added 40 The Supreme Court notes that the wording of the foregoing definition of rights of custody introduces the words and duties but otherwise does not differ from that contained in Article 5 of the Hague Convention Moreover it also notes that Article 2 11 a of Regulation No 2201 2003 envisages that a right of custody shall have been acquired by judgment or by operation of law or by an agreement having legal effect under the law of a Member State and that this wording follows closely that of Article 3 of the Hague Convention 41 The Supreme Court has taken note of the appellant s submission that the provisions of Regulation No 2201 2003 in particular its definition of rights of custody should in the light of Article 6 of the Treaty on European Union be interpreted so as to conform with the right to respect for private and family rights in accordance with Article 7 of the Charter of Fundamental Rights of the European Union The Supreme Court is of the view that the rights guaranteed by this Article correspond with the rights guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and that in accordance with Article 52 3 of the said Charter the meaning and scope of those rights are the same as those laid down by the said Convention Question referred for preliminary ruling 42 In these circumstances the Supreme Court submits to the Court of Justice for a preliminary ruling pursuant to Article 267 of Treaty on the Functioning of the European Union the question set out in paragraph 44 below 43 The Supreme Court is of the view that for the reasons given in this decision the answer to the question should be in the negative there does not appear to the Court to be anything in the text of Regulation No 2201 2003 or in Article 7 of the Charter of Fundamental Rights to suggest that a natural father should be recognised as having custody rights for the purposes of decisions on wrongful removal in cases of child abduction in the absence of a judgment of a court or if applicable a provision of law or by an agreement having legal effect made in the country of habitual residence of the children determining such rights 44 The question is as follows Does Council Regulation EC No 2201 2003 of 27th November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility repealing Regulation EC No 1347 2000 whether interpreted pursuant to Article 7 of the Charter of Fundamental Rights of the European Union or otherwise preclude a Member State from requiring by its law that the father of a child who is not married to the mother shall have obtained an order of a court of competent jurisdiction granting him custody in order to qualify as having custody rights which render the removal of that child from its country of habitual residence wrongful for the purposes of Article 2 11 of that Regulation SUPREME COURT Appeal No 171 10 Denham J Fennelly J Macken J Finnegan J O Donnell J IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AS AMENDED AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION DONE AT THE HAGUE ON THE 25TH OCTOBER 1980 IN THE MATTER OF COUNCIL REGULATION NO 2201 2003 EC AND IN THE MATTER OF J McB E McB and J C McB CHILDREN BETWEEN J McB Applicant Appellant AND L E Respondent Decision of the Supreme Court referring a question to the Court of Justice of the European Union for a Preliminary Ruling delivered by Mr Justice Fennelly on the 30th day of July 2010 1 This is an order for reference for preliminary ruling by the Supreme Court pursuant to Article 267 of the Treaty on the Functioning of the European Union The question relates to the interpretation of the notion of rights of custody within the meaning of Council Regulation EC No 2201 2003 of 27th November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility repealing Regulation EC No 1347 2000 hereinafter Regulation No 2201 2003 and in the Hague Convention of 25 October 1980 on the Civil Aspects Of International Child Abduction hereinafter the Hague Convention 2 The Court requests the Court of Justice to deal with the case under the urgent procedure pursuant to Article 104b of the Rules of Procedure of the Court of Justice It is recognised in the 17th recital to Regulation No 2201 2003 that in cases of wrongful removal of a child which is alleged in the present case the return of the child should be obtained without delay 3 The appellant in the national proceedings is the father and the respondent is the mother of three children born to them between 2000 and 2007 while the parties cohabited in a non marital relationship 4 It is agreed between the parties that Ireland was the country of habitual residence of the children for the purpose of the Hague Convention on 25th July 2009 on which date the respondent without notice to the appellant removed the children from Ireland to England 5 The issue in dispute is whether the appellant had rights of custody in respect of the children on the date of their removal from Ireland Legal Proceedings 6 On the 2nd November 2009 the appellant caused to be issued in the High Court of Justice Family Division of England and Wales hereinafter the English Court an originating summons in which he applied to the English Court for an order for the return of the children to Ireland pursuant to the legislation of the United Kingdom giving effect to the Hague Convention and to Regulation No 2201 2003 7 The English Court McFarlane J by order dated 20th November 2009 requested that the appellant pursuant to Article 15 of the Hague Convention obtain from the High Court of Ireland a decision or other determination that the removal of the children from Ireland was wrongful within the meaning of Article 3 of the Hague Convention 8 On 22nd December 2009 the appellant commenced proceedings in the High Court of Ireland by way of Family Law Special Summons seeking a declaration pursuant to the Irish legislation implementing the Hague Convention and to Article 15 of that Convention that the removal of the children from Ireland in July 2009 had been wrongful both within the meaning of Article 3 of the Hague Convention and of Article 2 of Regulation No 2201 2003 The appellant applied to the High Court in the same action for orders of guardianship and custody in respect of the children which latter issues have not yet been determined by the Irish courts 9 The High Court heard the appellant s application pursuant to the Hague Convention and to Regulation No 2201 2003 By a judgment delivered on 28th April 2010 that court per MacMenamin J determined that the appellant had not enjoyed any rights of custody in respect of the children at the time of their removal from Ireland and that the removal had not therefore been wrongful within the meaning of the Hague Convention or Regulation No 2201 2003 10 The appellant has appealed to the Supreme Court against the judgment of the High Court Some of the arguments of the appellant concerning the interpretation of Regulation No 2201 2003 have caused this Court to make the present order for reference Prior to considering those arguments it is necessary to give an account of the facts insofar as they are relevant to the question whether the appellant enjoyed rights of custody at the date of removal of the children Facts the relationship between the parties 11 The parties met in 1999 in England The father an Irish national was then aged 24 years The mother is English and was then 20 years of age In the following years the parties lived in England Australia Northern Ireland and Ireland They had three children J a son was born in England on 21st December 2000 E a daughter was born in Northern Ireland on 20th November 2002 J C a daughter was born in Northern Ireland on the 22nd July 2007 The respondent had two children from an earlier relationship one of whom a boy born in 1998 lived with the parties and treated the appellant as his father but is not the subject of these proceedings 12 In November 2008 the parties came to live in Ireland and found a home near to his family s original home Until July 2009 they lived in that area The children attended school locally 13 The High Court judge noted that the affidavits sworn by the parties contained a number of accusations and counter accusations He found that there was a picture of a rather unstable relationship which had never been settled The High Court was not required to resolve the conflicts of evidence between the parties That would be a matter for resolution by the court ultimately found to have jurisdiction to decide substantive matters of custody and access The function of the High Court was to decide whether the children had been wrongfully removed from Ireland and specifically whether the appellant had rights of custody in Irish law 14 Relations between the parties deteriorated in late 2008 and early 2009 Alleging aggressive behaviour on the part of the appellant the respondent brought the children on a number of occasions to a women s refuge The appellant left the family home The respondent commended proceedings in the local District Court seeking a barring order excluding the appellant from the family home but did not appear in court to proceed with her application 15 After a period of conflict when they lived apart the parties were reconciled in early April 2009 They decided to get married and agreed on 10th October 2009 as the date 16 The appellant went on a training course in Northern Ireland for ten days early in July 2009 In a telephone conversation at this time the respondent asked him whether he was marrying her only so as to be able to obtain guardianship of the children On the appellant s return from Northern Ireland on the 11th July 2009 he found the family home empty The respondent had taken the children to the women s refuge She left a letter addressed to him in which she made accusations which are denied She also said in that letter I would never deprive the kids of you I am not taking the kids away from you J you are a good dad and I have never said any different 17 The respondent remained at the refuge with the children between 11th and 25th July The appellant had continuing contact with and was involved in the care of the children at that time During that period the respondent changed her mind she decided to move to and settle in England with the children She did not inform the appellant of her intentions She booked flights for herself and the children with the assistance of the women s refuge On the 25th July 2009 she and the children flew to England 18 On the 15th July 2009 the appellant s solicitors on his instructions prepared an application which was intended to be made to the District Court at its next sitting in a local town on 9th September for an order pursuant to section 6A of the Guardianship of Infants Act 1965 appointing

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  • the extent to which it is reasonably possible to interpret national legislation in conformity with the Framework Decision and does not require national legislation to be interpreted contra legem as the learned trial judge stated As pointed out earlier it is manifest from the plain and express terms of article 23 3 of the Framework Decision that an agreement for postponement of the surrender to a later date must be agreed between a the executing judicial authority which in this case is the High Court and b the issuing judicial authority which here is the First Instance Riga Vidzeme Suburb Court of the Republic of Latvia as identified in the European arrest warrant in this case On the other hand as has been seen s 16 5 b of the Act of 2003 excludes the High Court and permits a postponement of the date for surrender beyond the initial ten day period where that is agreed b by the Central Authority in the State and the issuing state While that clearly requires the Central Authority in this State to enter into the agreement the section does not specify what authority in the issuing state must agree to the postponement It certainly does not specify that it be the Central Authority of the issuing state The section does not for example say be agreed by the Central Authority in the State and in the issuing state As the learned trial judge correctly pointed out at p 5 of his judgment in relation to this phrase Thus whilst that person in Ireland is the Minister for Justice Equality Law Reform in relation to the issuing State no particular persons are specified Any such agreement obviously cannot be entered into in the abstract with the issuing state but must be with some authority of that state In this regard the State had argued that para b of so far as Ireland was concerned clearly authorises the Central Authority in the State to agree the new date for the surrender taking place and that to hold otherwise would be to interpret the section contra legem I have no doubt that that is correct as concerns the Act The State went further and argued that as concerns the authority in the issuing state with which the agreement may be entered into the Oireachtas intended in s 16 5 b that it would be a matter for the issuing state to decide which authority could enter into such an agreement As a matter of fact the Latvian Central Authority decided to do so I do not consider that this attribution or presumption as to the intention of the Oireachtas is well founded On the contrary in my view the presumption must be that the section was intended to do what the Act expressly purports to do namely to give effect to the terms of the Framework Decision The Act was adopted by the Oireachtas in order to give effect to Council Framework Decision on the European arrest warrant and the surrender procedures between Member States as is stated in the long title to the Act That was the obligation of the State so as to ensure that surrender on foot of the European arrest warrant takes place in accordance with the Framework Decision The subsection in question falls to be interpreted as a matter of Irish law in the light of the Framework Decision and not as a matter of Latvian law Its provisions involve the requirements of national law by which the State is bound Section 16 5 b of the Act of 2003 certainly does not specify the Central Authority or any authority in the issuing state as the authority with which an agreement for a postponed surrender date may be made Faced with the silence of the subsection on that point the Central Authority here would have to ask itself whom does it contact in the issuing state where the question of agreeing a postponed surrender date arises As a consequence of these proceedings the Court is required to answer that question A reference to article 23 of the Framework Decision which s 16 of the Act of 2003 seeks to implement points to the judicial authority of the issuing state as being the only answer to that question At the very least there is an ambiguity in the Act as to whether the reference to the issuing state permits the Central Authority in the State to enter into such an agreement with any authority in that state Any such an ambiguity can in my view only be resolved by looking at the provisions of the framework decision in order to avoid to the extent to which the language of the provision permits a result contrary to that envisaged by the framework decision as stated at para 47 in the Pupino case Of course once one looks at the provisions of the Framework Decision the manner in which that ambiguity should be resolved is obvious and permissible because of i the absence of a reference to any specified authority in the statutory provision and ii the express requirement in article 23 3 that any such agreement must be reached with the issuing judicial authority which in this case is the Latvian Court referred to above Such an interpretation also accords with the objectives of the Framework Decision namely a system of surrender in lieu of extradition designed to operate fundamentally within a judicial process as Fennelly J so aptly described it in the citation above from his judgment in Dundon v Governor of Cloverhill Prison the Minister for Justice Equality and Law Reform Accordingly even though para b of s 16 5 of the Act of 2003 expressly authorised the Central Authority in the State to reach an agreement on a new date for surrender the agreement to do so could only be made by that Authority with the judicial authority of the issuing state Latvia as the subsection properly construed requires Since this was not done there was no valid or effective agreement to postpone the date of surrender within the meaning of section 16 5 b It will be recalled that subs 7 provides a person who is not surrendered to the issuing state in accordance with subsection 5 shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless upon such expiration proceedings referred to in subsection 6 are pending There were no such proceedings pending In reference to the time limit specified in s 16 Geoghegan J in Dundon at p 539 cited with approval the following statement in the judgment of O Sullivan J in the latter s High Court judgment in that case where he stated The time limits specified for surrender after the final decision are in a different category namely they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with That dictum was obiter in that case but it is clearly a correct statement as to the meaning and effect of section 16 7 There having been no valid agreement for the surrender of the applicant on a date after the expiry of the ten day period referred to he should have been released immediately on its expiry on 8th January 2008 Compliance by the State with the Framework Decision There is however another argument advanced in relation to this issue Section 10 of the Act of 2003 as amended provides 10 Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person that person shall subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state Emphasis added In this appeal the applicant submitted relying on the case law of this Court that s 10 rendered the Framework Decision directly applicably to arrest and surrender on foot of a European arrest warrant The words adopted by the Oireachtas in this section are very explicit The Oireachtas expressly requires any arrest or surrender on foot of a European arrest warrant to be done not only in accordance with the Act but in accordance with the Framework Decision It is of course entirely correct as I have pointed out above and this Court has pointed out many times that a framework decision unlike a directive in certain circumstances is incapable by virtue of community law of having direct effect That does not prevent the terms of the Framework Decision having an application at national level by virtue of an Act of the Oireachtas which the Act of 2003 does in a number of provisions of which s 10 is one Then its application is a consequence of national law not community law In Minister for Justice v Altaravicius cited above I concluded that the section of the Act of 2003 relevant in that case was clear and did not require that a copy of the underlying domestic warrant be incorporated in the European arrest warrant or be attached to it as the applicant in that case had contended I then went on to state at p 155 If that was the only provision governing what a European arrest warrant should specify the issues in this matter might have been more readily resolved Although the framework decision cannot in terms of community law have direct effect since Article 34 2 b of the Treaty on European Union expressly excludes such effect the Oireachtas has chosen to give it at least as regards a significant number of its provisions such effect and make it directly applicable within the State This is achieved inter alia by s 10 of the Act of 2003 which provides that where a European Arrest Warrant has been duly issued in respect of a person that person shall subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state The Act does not confine itself to including the framework decision in a schedule for reference purposes There are other provisions of the Act of 2003 which require the courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s 10 means that in deciding on an application for a surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision It is to say the least an idiosyncratic method of legislating and likely to create ambiguity Emphasis added Later in that judgment at p 156 I observed Thus this Court is in the unusual position of having to interpret and apply Article 8 of the framework decision directly because of the effect given to it in national law by the Oireachtas and not by Community law In Dundon v Governor of Cloverhill Prison cited above Fenelly J also alluded to the direct application of the Framework Decision as provided for not by community law but by the Act of 2003 as amended At page 547 he stated Section 16 1 e envisages that a person will be surrendered provided that inter alia the surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto Insofar as the statutorily permitted grounds of refusal to surrender go beyond the terms of article 1 3 of the framework decision but are covered by its recitals they are nonetheless expressly invoked by s 16 1 e of the Act Fennelly J then went on to point out that the courts are bound to apply the provisions of Acts of the Oireachtas and that where the provisions of an Act of the Oireachtas conflict directly with a provision of the Framework Decision the court must give preference to the former which could not be interpreted contra legem He then however added at p 547 The precise contours and limits of the rights that can be invoked under the Act will have to be explored as cases arise I am merely concerned to show that while the 60 day period does not confer protection on individuals there are other features of the framework decision at least as that measure is implemented in Irish law upon which reliance may be placed by individuals in appropriate cases So far as this case is concerned s 10 of the Act of 2003 expressly requires that the surrender of the applicant in this case be done not only and in accordance with the Act but additionally in accordance with the Framework Decision An individual must be able to rely on such provisions of the Framework Decision at least so far as that measure is made applicable in Irish law by the Act itself If it were otherwise it would render the express reference to the Framework Decision in s 10 meaningless Accordingly the applicant was entitled to place reliance pursuant to s 10 on the provisions of the Framework Decision which applied to his surrender to the issuing state Latvia In my view article 23 3 of the Framework Decision is clearly an article which governs the surrender of a person on foot of a European arrest warrant Accordingly by virtue of s 10 of the Act of 2003 the Central Authority in assisting and giving effect to the order of the court for surrender was under a duty to do so in accordance with the provisions of the Framework Decision as s 10 expressly provides While the entering into an agreement with the Latvian authorities by the Central Authority in the State was in conformity with sections 16 5 b it was in direct conflict with the provision of Article 23 3 and therefore not in accordance with s 10 of the Act of 2003 It was rather belatedly accepted during the course of the hearing on behalf of the Central Authority that there was a direct conflict between the provisions of article 23 3 and those of s 16 5 b which failed to properly give effect to the Framework Decision If the Central Authority had acknowledged from the outset that obvious conflict this litigation would probably have been resolved at a much earlier stage or indeed rendered unnecessary It is also somewhat disconcerting that the Central Authority even if it was of the view that it complied with the provisions of the statute would nonetheless persist with the surrender pursuant to purely administrative arrangements which were manifestly in conflict with the legal obligations imposed on the State by virtue of article 23 of the Framework Decision The issues in this case have been complicated by the fact that the Act has been drafted in such a way as to apply two legal norms to the same matter In this instance s 16 5 b of the Act and article 23 3 of the Framework Decision are both applicable to the matter of agreeing a postponed surrender date In Altaravicius the two applicable norms were s 11 of the Act and article 8 of the Framework Decision In that case I referred to this manner of legislating in restrained language as idiosyncratic It is a most unsatisfactory way of legislating and I still consider that I am expressing myself in restrained terms Framework decisions as their name suggest are legislative measures drafted in terms which range from the general to the specific intended to be effectively implemented by each member state through its own national legislative measures as article 34 2 b of the Treaty on European Union makes clear In principle therefore it is national legislation which must give effect to the framework decision and achieve its objectives That will usually mean that the provisions of the Acts of the Oireachtas themselves contain all the elements necessary to give effect to a framework decision That would not preclude however an Act expressly requiring something to be done in accordance with a specific provision of a framework decision particularly where such a provision is sufficiently clear and defined so as to be capable of being enforced or applied by a Court That might be done provided a section of the Act itself does not at the same time and in parallel with the particular provision of the framework decision purport to give effect to the latter provision so as to ensure that there is only one legal norm or provision applying to a particular matter What is unsatisfactory and has given rise to litigation and is likely to do so in the future is the fact that a provision of a framework decision and a specific section or part of an Act are both applicable to and govern a particular matter at the same time or in parallel Even where that is done so as to ensure that the provision in an Act is at least on its face in harmony with the applicable provision of the framework decision it means nonetheless that the Court has to interpret and apply two legal norms as happened in the Altaravicius case Such a situation is then exacerbated of course when there is a manifest divergence between the express terms of an Act and the express terms of a framework decision as has happened in this case For the reasons set out above the Central Authority in the State in entering into the agreement to postpone the date for surrender rather than taking steps to ensure that there was agreement between the two respective judicial authorities as article 23 3 of the Framework Decision requires failed to act in accordance with the requirements of s 10 of the Act This is in addition to the earlier conclusion that the agreement was also contrary to s 16 5 b insofar as it was made with the Central Authority of Latvia rather than the Latvian judicial authority as identified in the arrest warrant It is for the reasons set out in this judgment that I have concluded that there was no valid agreement to postpone the date of surrender pursuant to s 16 5 b of the Act and that therefore the applicant s continued detention was unlawful THE SUPREME COURT 03 172 08 Murray C J Kearns P Hardiman J Fennelly J Finnegan J BETWEEN SERGEJS RIMSA APPLICANT AND GOVERNOR OF CLOVERHILL PRISON RESPONDENT AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM NOTICE PARTY JUDGMENT of Murray C J delivered on the 28th day of July 2010 This judgment sets out the reason why at the hearing of the appeal in this matter the Court ordered the release of the applicant pursuant to Article 40 4 2 on the grounds that it was not satisfied that his then detention in custody was in accordance with law The appeal was against an order of the High Court refusing his application By order of the High Court dated 13th December 2007 it was ordered pursuant to s 16 of the European Arrest Warrant Act 2003 as amended hereafter the Act or the Act of 2003 that the applicant be surrendered to the authorities of the Republic of Latvia in respect of a criminal offence specified in a European arrest warrant seeking such surrender That order of the High Court which was addressed inter alia to the respondent the Governor of Cloverhill Prison directed that the applicant be lodged in Cloverhill Prison and be detained there in custody for a period of not less than fifteen days from the date of the order until the date of his delivery as aforesaid and for any further period as may be necessary under the law It was the detention on foot of the said order which the applicant contended was unlawful Section 16 of the Act of 2003 Section 16 of the Act of 2003 as amended by s 76 of the Criminal Justice Terrorist Offences Act 2005 provides as follows 16 1 Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15 9 the High Court may upon such date as is fixed under section 13 or such later date as it considers appropriate make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that a the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued b the European arrest warrant or a facsimile or true copy thereof has been endorsed in accordance with section 13 for execution of the warrant c where appropriate an undertaking under section 45 or a facsimile or true copy thereof is provided to the court d the High Court is not required under section 21A 22 23 or 24 inserted by sections 79 80 81 and 82 of the Criminal Justice Terrorist Offences Act 2005 to refuse to surrender the person under this Act and e the surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto 2 Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15 9 the High Court may upon such date as is fixed under section 14 or such later date as it considers appropriate make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that a the European arrest warrant and where appropriate an undertaking under section 45 or facsimile or true copies thereof are provided to the court b the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued c the High Court is not required under section 21A 22 23 or 24 inserted by sections 79 80 81 and 82 of the Criminal Justice Terrorist Offences Act 2005 to refuse to surrender the person under this Act and d the surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto 2A Where the High Court does not a make an order under subsection 1 on the date fixed under section 13 or b make an order under subsection 2 on the date fixed under section 14 it may remand the person before it in custody or on bail and for those purposes the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence 3 An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court upon the request of the person to whom the order applies directs 4 When making an order under this section the High Court shall also make an order committing the person to a prison or if he or she is not more than 21 years of age to a remand institution there to remain pending his or her surrender in accordance with the order under this section and shall inform the person a that he or she will not without his or her consent be surrendered to the issuing state before the expiration of the period of 15 days specified in subsection 3 and b of his or her right to make a complaint under Article 40 4 2 of the Constitution at any time before his or her surrender to the issuing state 5 Subject to subsection 6 and section 18 a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after a the order takes effect in accordance with subsection 3 inserted by section 76 d of the Criminal Justice Terrorist Offences Act 2005 or b such date being a date that falls after the expiration of that period as may be agreed by the Central Authority in the State and the issuing state 6 Where a person makes a complaint under Article 40 4 2 of the Constitution he or she shall not be surrendered to the issuing state while proceedings relating to the complaint are pending 7 A person to whom an order for the time being in force under this section applies who is not surrendered to the issuing state in accordance with subsection 5 shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless upon such expiration proceedings referred to in subsection 6 are pending 8 Where the High Court decides not to make an order under this section a it shall give reasons for its decision and b the person shall subject to subsection 9 be released from custody 9 Subsections 7 and 8 shall not apply if a i the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State ii on the date on which he or she would but for this subsection be entitled to be released under subsection 7 or 8 all or part of the term of imprisonment remains unexpired and iii the person is required to serve all or part of the remainder of that term of imprisonment b i the person has been charged with or convicted of an offence in the State and ii on the date on which he or she would but for this paragraph be entitled to be released from custody under subsection 7 or 8 he or she is required to be in custody by virtue of having been remanded in custody pending his or her being tried or the imposition of sentence in respect of that offence 10 If the High Court has not after the expiration of 60 days from the arrest of the person concerned under section 13 or 14 made an order under this section or section 15 or has decided not to make an order under this section it shall direct the Central Authority in the State to inform the issuing judicial authority and where appropriate Eurojust in relation thereto and of the reasons therefor specified in the direction and the Central Authority in the State shall comply with such direction 11 If the High Court has not after the expiration of 90 days from the arrest of the person concerned under section 13 or 14 made an order under this section or section 15 or has decided not to make an order under this section it shall direct the Central Authority in the State to inform the issuing judicial authority and where appropriate Eurojust in relation thereto and of the reason therefor specified in the direction and the Central Authority in the State shall comply with such direction 12 An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court on a point of law only Background Circumstances In accordance with s 16 3 of the Act the order of the High Court for the applicant s surrender was not to take effect before the expiration of a period of fifteen days after the making of the order This was intended to facilitate inter alia an appeal from the High Court order No appeal was lodged or other application made to a court during that period Accordingly the High Court order of 13th December directing the applicant s surrender to Latvia took effect fifteen days after that The Irish and Latvian Central Authority proceeded on the basis that having regard to s 16 5 of the Act the applicant s surrender to the issuing state Latvia was required to take place not later than ten days after December 28th namely not later than the 7th January 2008 unless para b of s 16 5 applied No issue arises as to the relevant dates As can be seen from that section cited above para b means that surrender may be postponed by agreement to a date not later than ten days after such date being a date that falls after the expiration of that period as may be agreed by the Central Authority in the State and the issuing state In the event of such later date being duly agreed in accordance with the section the section requires the surrender to be made not later than ten days after the newly agreed date In this case if no agreement on a later date had been entered into pursuant to s 16 5 b and surrender had not taken place before or on 7th January 2008 s 16 7 required the immediate release of the applicant that date being the tenth day following the date on which the order for surrender was considered to take effect There was no issue between the parties as to 7th January 2008 being the relevant date for this purpose In this particular case the Latvian Central Authority was notified on 13th December 2007 of the making of the order and of the period of fifteen days before which it would take effect This was done by an official in the Department of Justice Equality and Law Reform acting as the Central Authority in the State By fax dated 28th December 2007 the Department again as the Central Authority in the State reminded the Latvian Central Authority that the surrender of the applicant should take place within ten days of 28th December Again by fax dated 2nd January 2008 the Department reminded the Latvian Central Authority that it should contact An Garda Siochána to make the necessary arrangements for the surrender of the applicant Despite the three communications between 13th December 2007 and 2nd January 2008 no response was received by the Central Authority in the State from the Latvian Central Authority On 3rd January 2008 the Department eventually sent an e mail marked urgent to the Latvian Central Authority pointing out that the applicant the subject of the order for surrender must now be collected by your Police Authorities by 07 01 2008 On the same date a response was received from the Latvian Central Authority which asserted inter alia that due to national holidays before New Year s Eve and the following days respective notification on granted surrender was received at this office only on 02 01 2008 It went on to state that it would not be able to collect the subject with 7th January 2008 being the deadline since there were tickets available for flights to Dublin only for 08 09 and 10 01 2008 The Latvian Central Authority indicated that for practical reasons including the question of flight availability it was not in a position to collect the applicant by 7th January 2008 The communication went on to state that a precise proposal for an alternative date would be communicated when it had exact flight details for arrival and departure By e mail dated 4th January 2008 the Department responded indicating that it had no objection to the extension of the deadline for the surrender of the applicant By e mail dated the same date the Latvian Central Authority responded by stating that surrender could take place on 9th January 2008 based on the availability of flights to and from Riga and Dublin The Department responded on the same date stating that the revised surrender date of 9th January was acceptable to the Central Authority and An Garda Siochana Before the surrender on the re arranged date could take place the applicant obtained an order of the High Court directing an inquiry into the lawfulness of his detention pursuant to Article 40 4 2 He contended that his then detention was unlawful because of the failure of the State to release him from custody on the expiry of ten days from 28th December 2007 the date on which the High Court order for his surrender took effect It was also contended that the purported agreement between the two Central Authorities for surrender to take place at a later date was not a valid or lawful postponement of the surrender within the meaning of section 16 5 b The hearing of the applicant s application on the merits was held promptly and a judgment was delivered on 11th January 2008 The Court dismissed the applicant s application concluding that he was detained in accordance with law The applicant appealed against that decision to this Court While that particular appeal was pending the applicant made a new and distinct application to the High Court for his release pursuant to Article 40 4 2 essentially on the grounds that s 16 5 b of the Act of 2003 was unconstitutional The High Court ruled that the said subsection was not invalid having regard to the provisions of the Constitution and that the applicant s then detention was in accordance with law The applicant also appealed against the decision of the High Court in that case but that appeal which was not heard would now appear to be moot High Court Judgment of 11th January 2008 For the purposes of the issues in this appeal there were two relevant issues decided by the High Court in this case Rimsa v Governor of Cloverhill Prison the Minister for Justice Equality and Law Reform 2008 IEHC 6 Unreported High Court Hedigan J 11th January 2008 In contending that the purported postponement was invalid as not complying with the provisions of s 16 5 b the applicant had submitted that such postponement could only be agreed where it was necessary to do so and that in any event there were no reasonable grounds for such a postponement because there were seats available on the flights from Riga to Dublin on dates preceding the deadline date of 7th January In those circumstances the Latvian authorities could it was contended readily have made arrangements for the surrender to be effected within the initial ten days envisaged by the Act The applicant contended that para b of s 16 5 should be interpreted in the light of that portion of article 23 3 of the Council Framework Decision 2002 584 JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States O J L 190 1 18 7 2002 hereafter the Framework Decision which only envisaged the postponement of a surrender beyond the initial period of ten days where surrender is prevented by circumstances beyond the control of any of the member states So interpreted s 16 5 b means that an agreement between the two authorities on a later date could only be entered into if it was necessitated by circumstances beyond the control of the two states concerned Having reviewed the evidence before him the learned trial judge concluded at p 4 It seems reasonable to accept that during the new year holiday season seat availability might well be limited I do accept this and therefore I accept there were grounds of necessity requiring the arranging of a later date Notwithstanding my finding in this regard I do not think that s 16 5 makes any requirement of necessity in order to ground an extension although it is clear that the surrender should be effected as soon as possible I do accept that the Framework Decision may be looked to in order to interpret the national legislation To that extent paragraph 3 of Article 23 does provide that where the surrender of the requested person is prevented by circumstances beyond the

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  • was a case emanating from Jamaica and involved an interpretation of the statute in the context of the Jamaican constitution This distinction could not hope to avail the Appellant since as Lord Bridge of Harwich observed at p 222 E that it was Common ground between the parties and their lordships readily accept as correct that s20 8 of the Constitution of Jamaica is simply intended to embody the common law doctrines of autrefois convict and autrefois acquit The central issue raised by the appeal is whether the autrefois convict can be sustained by anything less than evidence that the offence with which the defendant stands charged has already been the subject of a complete adjudication against him by a court of competent jurisdiction as in both the decisions establishing his guilt whether it be the decision of the court or of the jury or of the entry of his own plea and the final disposal of the case by the court by passing sentence or making some other order such as an order of absolute discharge On the hearing of this appeal counsel for the Appellant faced with the difficulty posed by this judgment and its acceptance by the High Court did not press the case of autrefois convict or estoppel It is not necessary therefore to further consider the decision in Richards v The Queen or to address the difficult questions which can sometimes arise on the application of the doctrine of autrefois convict such as the precise extent of the principle or the intersection of that principle with the doctrine of abuse of a process upon which Lords Morris of Borth y Gest and Lord Devlin differed in Connelly v DPP 1964 2 WLR 1145 and not resolved in this jurisdiction by the State Brien v Kelly 1970 IR 69 Nor is it necessary to address the position which might have arisen had the accused been sentenced on the s 3 charge Those are matters which may arise in some future case In this Court counsel put the case squarely on the basis of an abuse of the process He accepted that the DPP had the power to prefer a further charge but in the context of this case he contended that the failure of the DPP to indicate at the time the willingness of the prosecution to accept signed pleas was communicated to the accused that nevertheless the DPP was reserving his position in relation to more serious charges meant that the prosecution on the s 4 charge would be an abuse of the process If this case was to be determined by an assessment of the performance of the prosecutorial function in this case then there is no doubt that the Appellant has grounds for complaint The manner in which this case is being dealt with by the DPP is not beyond criticism It does seem that little if any thought was given to the confusion that could occur if consent to either summary disposal or signed pleas was given at a time when there was still a possibility of further and more serious charges At a minimum there was a risk that if the signed plea proceeded to sentence or indeed if the court took a different view as to the conviction necessary to sustain a plea of autrefois convict that the charge which by definition the Director considered to be the most appropriate on the facts might not have been capable of being preferred There is also a decided lack of evidence and information in the replying affidavit as to the crucial issue as to what occurred when the original direction was given The source of the confusion in this case is the step taken almost it appears automatically in the Director s office to indicate in advance a willingness to accept signed pleas in circumstances where the Director had not yet decided that such a plea would resolve the matter and indeed while actively considering a further and more serious charge In such circumstances it certainly would have been preferable if a comprehensive and frank account had been given of the steps taken or not taken and the thinking behind them If there was error or confusion that should be acknowledged It is certainly less than satisfactory that this matter should be dealt with by a single rather general averment made by a person one step removed from the decision making process Furthermore it should be recognised that the interest involved in a humane and efficient criminal justice system include a consideration of the position of a person subject to investigation on a possible charge This might the first occasion on which an individual has any dealings with the criminal justice system What appears obvious and routine to a person familiar with the system may appear bewildering to someone who is encountering it for the first time and who may be facing a criminal charge It is difficult to avoid the conclusion that there was here a mechanical approach to the issue of standard directions and that little thought was given to the possible difficulties that could occur if an accused person was permitted to proceed to the signed pleas procedure before any decision was made by the Director as to the preferment of more serious charges However I cannot accept that clumsiness or lack of forethought or simple error on the part of the prosecution can without more amount to an abuse of the process A trial of the Appellant on the s 4 charge could not remotely be said to be something less than a trial in due course of law as required under Article 38 of the Constitution On the contrary to prevent a trial on the charge obviously appropriate to a serious incident would be to afford to the people of Ireland something less than they are entitled to expect from the criminal justice system There are very limited circumstances in which a court will prohibit a trial which after all a trial judge is obliged to conduct in accordance with the mandate of Article 38 on the grounds of abuse of the process In those limited cases in which such a claim has succeeded there has been something more than silence on the part of the prosecutor For example in the leading case of Eviston v DPP 2002 3 IR 260 there was a positive communication by the prosecutor that there would be no charge considerable stress caused to the accused by subsequent reversal of that decision the fact that that decision was reversed after a representation made by the father of the person who had died in the accident and the further fact that no explanation for the change of position was forthcoming although it was acknowledged that there had been no change in the evidence considered between the time of the original decision and its reversal It is clear from the judgment however that this combination of events is somewhat exceptional and that it would only be in relatively rare cases that the court would prohibit a trial absent such a combination of factors See e g Carlin v DPP 16 th March 2010 Here the facts fall very far short of those to be found in Eviston for example It is true that if in Eviston that the Director at the time of the notification that there would be no prosecution had however reserved his right to change his mind in that regard then absent some other factor it is highly unlikely that Ms Eviston would have been able to contend that the prosecution should be prohibited In this case counsel seeks to argue that the Director s failure to reserve his decision in relation to the s 4 charge or indeed any other charge should be similarly fatal However this is to treat the lack of a reservation as the critical feature in Eviston rather than as one of a number of factors Furthermore it equates a positive communication in Eviston with simple silence in this case It is noteworthy that the Appellant in this case did not swear an affidavit There is no suggestion in the affidavit sworn on his behalf by his solicitor that he believed that the signing of pleas was an end to the possibility of prosecution or that he suffered any significant stress as a result of the preferment of the s 4 charge Nor is this simply the absence of some standard averments in an affidavit The truth is that the events in this case occurred in a very short space of time when the proceedings were still reasonably fluid The assault occurred on the 23 rd of June the s 3 charge was preferred sometime after the 29 th July the pleas were signed on the 6 th of August 2008 on the 21 st August the s 4 charge was directed and in late August that fact was communicated to the representatives of the accused There may have been unthinking adherence to a standard procedure a lack of communication and general clumsiness but that in my judgment falls far short of rendering a trial on the s 4 charge so deficient in justice that it should be prohibited as an abuse of the process THE SUPREME COURT Murray C J Hardiman J O Donnell J 214 09 Between WARREN HIGGINS Applicant Appellant and THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent Judgment delivered by O Donnell J on the 27 th day of July 2010 In these proceedings the Applicant Appellant seeks to restrain his prosecution on a charge of assault contrary to s 4 of the Non Fatal Offences Against the Person Act 1997 Assault Causing Serious Harm which is alleged to have occurred on the 23 rd June 2008 at Gurranabraher County Cork A young man had been assaulted and stabbed in the face with a broken bottle It was believed by the investigating gardaí that the victim had permanently lost the sight of one eye The grounds upon which the Appellant relies on this appeal all arise from the fact that the Appellant was initially charged with an offence contrary to s 3 of the Non Fatal Offences Against the Person Act 1997 Assault Causing Serious Harm in respect of the incident and had invoked the procedure under s 13 b of the Criminal Procedure Act 1967 which permits an accused person charged with an indictable offence to sign pleas and be sent forward to the Circuit Court for sentence It was only then that the DPP preferred the charge under s 4 The Appellant contends that further prosecution of the s 4 charge should be prohibited on the grounds that he was autrefois convict on that charge by virtue of the signed plea procedures or that the Director of Public Prosecutions was estopped from pursuing the s 4 charge or that pursuit of that further prosecution of the s 4 charge would be an abuse of the process In the High Court O Neill J dismissed the Appellant s claim Facts The assault in question occurred on the 23 rd June 2008 The Applicant attended voluntarily at a garda station the following day and admitted that he was involved He was arrested and on the 2 nd July 2008 was charged with a s 3 assault On the 29 th July 2008 the DPP directed prosecution on the s 3 charge consented to a return for trial and also consented to the Applicant being sent forward on signed pleas should that arise The entirety of the evidence on this critical matter is contained in a single paragraph of the affidavit of Mr Edward O Hanlon the Assistant State Solicitor with responsibility for the case On 29 th July 2008 the DPP directed he did not wish to direct a s4 prosecution absent medical evidence In the interim and to obviate delay the DPP directed a s3 prosecution and consented to a return for trial on that charge and to the applicant being sent forward on a signed plea should that arise The DPP reserved his position on s4 pending medical evidence and indicated that medical evidence should be secured as soon as possible and in any event well prior to arraignment It will be noted that this passage does not indicate whether the direction of the DPP was oral or in writing or that all of the matters in the paragraph were communicated to Mr O Hanlon or anyone else on the 29 th July 2008 No explanation as to the thinking of the office of the DPP is given in particular as to why the procedure followed was thought to obviate delay or indeed why any willingness was being indicated to accept a signed plea while still reserving a position on the s 4 charge Insomuch as the paragraph records the wishes thinking and reservation of the DPP or any of his representatives it is at best hearsay It is certainly not suggested however that the reservation of the DPP s position described in this paragraph in Mr O Hanlon s affidavit was communicated to the representatives of the accused On the 6 th of August 2008 the accused duly signed pleas and was sent forward to the Circuit Court and was due to appear there on the 28 th October 2008 There was some correspondence between the Appellant s representative and the State Solicitor s Office On the 8 th August the gardaí forwarded to the State Solicitor an ophthalmologist s report dated the 23 rd July 2008 That report confirmed that the injured party had indeed lost the sight of an eye That report was received by the DPP on the 13 th August On the 19 th August the State Solicitor received an A E report which was forwarded to the DPP on the 20 th August 2008 It does not appear that this latter report was before the DPP on the 21 st August when he directed a s 4 prosecution and consented to a return for trial on that charge and to the Applicant being sent forward on a signed plea should that arise Again in the words of Mr O Hanlon The direction further indicated that the applicant s solicitor should be written to in order to point out the applicant s right to resile from his plea to the s3 charge The direction also noted that if the applicant did resile from his plea that the jury would not be aware of the same and that plea would not feature at this trial The DPP directed the s4 prosecution based on a report of Dr Murray the ophthalmologist I am informed that it appears that Dr Iomhar O Sullivan s the consultant in emergency medicine report was received by the DPPs office sometime on the 21 st August 2008 but was not before the professional officer when he made his decision Although not referred to in the grounding affidavit of the Appellant s solicitor it is stated in Mr O Hanlon s replying affidavit and not contradicted that in late August he informed the defence of the intention to bring a s 4 charge On the 24 th September 2008 the Applicant Appellant was charged with a s 4 assault and notwithstanding the objections of the Applicant s representatives was remanded for preparation of a Book of Evidence There was correspondence in which the accused s representatives maintained their objection to the course being adopted In response the State Solicitor wrote to the solicitor for the accused on the 24 th September 2008 stating I am instructed by the Director of Public Prosecutions to advise you that your client is entitled to resile from the plea entered and that it is proposed to send him forward on a s4 assault charge to be proceeded with in lieu of the s3 assault charge In the circumstances I would respectively suggest your client would not be prejudiced by this course of action In the affidavit sworn in these proceedings Mr O Hanlon made it clear that it was no longer the DPP s case that the s 4 charge would be proceeded with in lieu of the s 3 charge but rather that it was the DPP s preference that both charges would proceed together and that as I understand it the normal course would then be followed as discussed in DPP v Finnamore 2009 1 IR 153 and the jury would be directed to consider the more serious charge first and if the accused was convicted on that not to proceed to record a conviction on the lesser charge That course however could only be followed if the accused accepted the invitation to resile from his plea If instead he maintained the signed plea then the s 4 trial would proceed On the 28 th of October the s 3 charge and signed pleas came before the Circuit Court Counsel for the accused indicated that the signed plea was being affirmed and sought to have the matter proceed to sentence However the court acceded to the Director s application for adjournment pending the outcome of these proceedings The procedure for sending forward an accused person on signed pleas was introduced in the Criminal Justice Act 1951 and is now contained in the Criminal Procedure Act 1967 Section 13 2 of that Act as substituted by section 10 3 of the Criminal Justice Act 1999 provides that If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged the Court a or b if the accused signs a plea of guilty may subject to subsection 2A send him forward for sentence with that plea to the Court to which but for that plea he would have been

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/016c6daa0a5132a88025776d002a30a7?OpenDocument (2016-02-09)
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