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  • to a real danger of bias Everything will depend on the facts which may include the nature of the issue to be decided We cannot however conceive of circumstances in which an objection could be soundly based on the religion ethnic or national origin gender age class means or sexual orientation of the judge Nor at any rate ordinarily could an objection be soundly based on the judge s social or educational or service or employment background or history nor that of any member of the judge s family or previous political associations or membership of social or sporting or charitable bodies or Masonic associations or previous judicial decisions or extra curricular utterances whether in textbooks lectures speeches articles interviews reports or responses to consultation papers or previous receipt of instructions to act for or against any party solicitor or advocate engaged in a case before him or membership of the same Inn circuit local Law Society or chambers It would need a considerable and in my view unjustified step to disqualify a qualified person from performing the valuable service of adjudicating on disputes merely because of past professional associations or social links or background A vast number of administrative and adjudicative bodies draw on a pool of persons qualified by their experience including past and present professional or career links to bring balanced judgment and common sense to the resolution of disputes This Court in the case of Bula Ltd v Tara Mines Limited and others cited above rejected as unfounded a challenge to one of its own judgments which was founded on the past professional associations of two of the judges who had when barristers provided advice or legal representation to one or other of the parties to the litigation I can see no basis for attributing bias to Professor Sagarra based on her cited career involvement with the College In particular I fail to understand why her undoubted obligation and natural wish to vindicate the best interests of the College should render her more likely to favour a member of staff over a student I specifically reject the suggestion advanced by the applicant in his affidavit that the Professor has an interest in the outcome of appeal to the Visitors She has none whatever other than that of seeing that matters are justly and correctly decided Appointment of second visitor It is difficult to identify the precise basis of this complaint The applicant perhaps cast most light on it by recalling a dictum of a corrupt American politician of the nineteenth century to the effect that he who controls the nominating process controls the result In reality this can only be a further allegation of bias In the present context the gravamen of the complaint is that although the Government chooses the second member of the panel of Visitors the University through its senate nominates the two persons from whom that choice is to be made But this comes nowehere near providing a basis of complaint as to the composition of the Visitors The University undoubtedly has both an interest and duty to see that only competent persons of integrity and independence can be Visitors The fact that one visitor is in effect nominated by the University does not call either the independence or integrity of the Visitors into question Factual errors mistake as to jurisdiction The first point to make is that the applicant is not really complaining about alleged factual errors under this heading He seeks refuge in his status as a litigant in person He has gone to enormous lengths to produce authority for the proposition that courts will assist litigants in person and will relax the rigours of procedural rules in order to be satisfied that they have been fully able to present their cases This does not mean that a litigant in person is freed from the constraints inherent in the judicial process In the case of judicial review an applicant is required to comply with two provisions Firstly he must promptly and in any event within in a case such as the present six months of the act complained of Secondly he must produce a statement of the grounds on which he seeks judicial review To the extent that the Court relaxes the second requirement it may also tend to infringe the first In other words if it allows the statement of grounds expressly or implicitly to be expanded after the passing of the time limit it may impinge on the rights of the respondent to the application In the present case the applicant seeks at a very late stage to advance a novel argument He claims that the Visitors misinterpreted their jurisdiction He says that the original Charter of the University in the form of Letters Patent of Queen Elizabeth I establishing Trinity as a College 3rd March 1592 provided that the Visitors shall break off and limit all contentions actions and controversies which the Provost and a majority of the Fellows cannot settle and that they shall punish all the graver faults not amended by the Provost and Fellows He referred to a like provision in amending Letters Patent of King Charles I The applicant claims these Letters Patent as grounds of jurisdiction for the Visitors independent of the Disciplinary Procedures set out in the Statutes He claims in effect that the exercise of this jurisdiction is not predicated on any decision of the Board In effect he can invoke the jurisdiction of the Visitors directly I would reject this argument entirely for two principal very clear reasons Firstly this argument figures nowhere in the judicial review statement on which the entire application is based Nor is it mentioned in the grounding affidavit It is true that the Letters Patent are quoted several times in the course of the affidavit but not as supporting an independent ground of judicial review Secondly as I have shown earlier the applicant repeatedly invoked the appeal jurisdiction of the Visitors as flowing from Section 6 of Chapter III of the Statutes which necessarily and expressly requires that there have been a decision of the Board from which an appeal could be brought The applicant claimed that the Board had failed to make a decision but that this failure should not defeat his appeal Thus he based his appeal on section 6 of Chapter III claiming that the Board must be considered as having made a decision The Visitors ruled on the applicant s appeal on the precise basis upon which he had brought it to them They held that Section 6 required that there must have been a positive decision of the Board meaning an actual decision not a deemed one In these circumstances the applicant has not either before the Visitors or in his statement grounding his application for judicial review advanced the argument based on the jurisdiction of the Visitors which he now wishes to advance When he has got a ruling from the Visitors based on his own explanation of his appeal it would be quite wrong to allow him to attack that decision on the basis of a claim to jurisdiction never advanced before the Visitors It would be to allow judicial review of a decision which the Visitors never made I would add that the Visitors were quite obviously correct in their ruling The Board made no decision on Professor McGilp s report There is no provision in the Statutes such as may occasionally be provided in statutes deeming a decision to have been made in default after the lapse of a specified period In the absence of an actual decision of the Board the Visitors had no jurisdiction Moreover the jurisdiction of the Visitors appointed pursuant to Chapter III and consequently the Visitors who made the impugned decision depends on the terms of that Chapter specifically section 6 In my view even on the most generous interpretation of the ground regarding factual errors contained in the statement grounding judicial review there was no material error in the decision of the Visitors For these reasons the applicant has not established any arguable ground for the judicial review he seeks and I would dismiss his application for leave Objection to a member of the Court I should note one other matter Prior to the commencement of the hearing the Court drew the attention of the applicant to the fact that one member of the Court Macken J had been a student at Trinity College and had also for a time in the past lectured there in law The Court asked the applicant whether he had any objection to the composition of the Court After some hesitation the applicant said that he had not During the course of the hearing the applicant changed his mind and said that he objected to the presence on the Court of Macken J The Court having risen to consider the objection rejected it It held that the fact that a member of the Court was a graduate of and had formerly taught at the University whose affairs were in issue was not a ground establishing objective bias Judges are drawn from a broad cross section of society Their past associations doe not disqualify them from performing their duty as judges THE SUPREME COURT Fennelly J Macken J Finnegan J S C No 422 05 BETWEEN PATRICK KELLY APPLICANT AND THE VISITORS OF THE COLLEGE OF THE HOLY AND UNDIVIDED TRINITY OF QUEEN ELIZABETH NEAR DUBLIN RESPONDENTS Judgment delivered the 14th day of December 2007 by Fennelly J This is an application for leave to apply for judicial review of a decision of the Visitors to Trinity College The application for leave was dismissed in the High Court Abbot J and comes before this Court pursuant to Order 58 Rule 13 of the Rules of the Superior Courts The impugned decision was made by the Visitors on 9th November 2005 They ruled that they had no jurisdiction to consider a complaint of bullying made by the applicant a student against a member of staff The applicant complains principally of the composition of the Visitors and alleges bias For ease of reference I will describe the University as Trinity or the College The background to the application is complex and involves several procedural stages of the applicant s complaints and a number of elements of Trinity administration The applicant has submitted an extremely long grounding affidavit voluminous documentation and no less than six sets of written submissions He also presented oral submissions before the Court Most of the background is not directly relevant to the very specific grounds for judicial review placed before the Court by the applicant During the academic year 2002 2003 the applicant was a postgraduate student on the Masters in Social Work course at Trinity Part of his course involved placement on a Practice Project at the Risk Assessment and Consultation Service of the South Western Area Health Board There was deep seated and fundamental dispute between the applicant and his Practice Teacher Ms Enda Fulham who terminated the applicant s placement a month early The applicant submitted a Practice Project report in May 2003 He included it a detailed and very strongly worded complaint against Ms Fulham accusing her inter alia of subjecting him to incessant abuse and criticism Ms Fulham wrote an Evaluation Report on the applicant s placement She recommended the applicant for a grade of F2 which means an absolute fail The applicant sent responses to the Evaluation Report to the course director for the Masters in Social Work The latter acknowledged what she described as his complaint dated 21st June 2003 and said that the complaint would be investigated About this time Trinity had adopted a Policy and Procedures for dealing with Complaints of Bullying or Harassment including Sexual Harassment This policy appears to apply to both students and employees at Trinity The applicant s complaint was investigated in accordance with this procedure On 27th November 2003 Mr Michael Gleeson Secretary to the Board of Trinity wrote to the applicant enclosing a copy of the report of the investigation conducted by the Pro Dean of Business Economic and Social Studies in accordance with the College s policy on preventing Sexual Harassment and Bullying The Report was by Professor J A Murray Professor of Business Studies who said that he had been asked to consider the complaint and to report to the College He named a number of people whom he had interviewed including Ms Fulham but he said that the applicant had declined an invitation to meet with him to discuss the complaint Professor Murray reported that in his opinion the complaint was without substance He was satisfied that neither harassment nor bullying had occurred The applicant pursued the matter via the Anti Bullying Unit of the Health and Safety Authority According to the applicant a new and upgraded Anti Bullying Policy was adopted by Trinity He spent months trying to get Trinity to reinvestigate his complaint On 6th July 2004 he was informed by the Secretary that Professor Murray had reviewed the complaint in the light of the changes to the policy and that his opinion would not have been different if the new policy had been in force On 5th October 2004 the Secretary informed the applicant that the College had appointed Professor John McGilp Professor of Physics and formerly Bursar of the College to re consider the complaint in the context of the current guidelines and to report to the College on the matter Professor McGilp conducted an investigation during which the applicant met him On 14th February 2005 the applicant received a letter from the Staff relations Officer at the College informing him that Professor McGilp had completed his report in line with Section 7 of the College Policy and Procedures for dealing with complaints of Harassment Professor McGilp reported I find no corroborating evidence to support any of Mr Kelly s allegations and I find that Mr Kelly s complaint is unfounded The applicant was invited to and did respond to Professor McGilp s report On 15th March 2005 he wrote to the Secretary asking whether the Board of Trinity College had made a decision on the complaint He continued In default of a decision on the complaint or an explanation I will notify the registrar of my intention to appeal to the Visitor Mr Justice McCracken under Chapter III Section 6 of the College Statutes The Secretary responded that this was not a matter for the Board which had no role in relation to the investigations carried out in accordance with the above anti bullying policy The Board did not make any decision on the matter As will be seen later the applicant has submitted that the Board should be deemed to have made a decision The concluding part of the Ant Bullying Policy provided following an investigation of a complaint If it is found that the complaint is well founded the investigator may recommend counselling monitoring or the convening of a disciplinary hearing This outcome should be conveyed personally as well as in writing to the individual concerned If a disciplinary hearing is recommended this will be conducted in line with the statutes and or agreements pertinent to the person involved If either party is unhappy with the outcome of the investigation the issue may be processed through normal industrial relations mechanisms Clearly the investigator Professor McGilp had not recommended a disciplinary hearing On the contrary he had found that the applicant s complaint was unfounded Thus the only possibly applicable provision of the Policy was that permitting the matter to be processed through normal industrial mechanisms The interpretation of this provision is not before the Court on the present application and the applicant has sought no relief by reference to it It is better therefore to refrain from comment as to its effect As a matter of fact the Secretary wrote on 18th March 2005 drawing the above quoted provision to the attention of the applicant and informing him that he might process the issue through normal industrial relations mechanisms He continued In this case in accordance with the College Statutes you may refer the matter to the Senior Dean The applicant disagreed with the Secretary s statement that his complaint was not a matter for the Board He states that the Senior Dean and the Disciplinary Procedures governing Members of the Academic Staff are not a normal industrial relations mechanism The applicant maintains that he had made no complaint against Ms Fulham pursuant to Schedule III to Chapter XII of the Consolidated College Statutes hereinafter the Statutes His complaint he says was under the College s upgraded policy on bullying These matters are not directly before the Court for decision They are relevant as background to the circumstances in which the Visitors came to make the impugned decision On 21st March 2005 the applicant wrote to the Registrar of the College informing him of his intention to appeal to the Visitors In his letter purporting to invoke the jurisdiction of the Visitors he claimed that the Board had defaulted and notified the Registrar of his intention to appeal to the Visitors under Chapter III Section 6 of the College Statutes As I have explained however the Board had made no decision Section 6 of Chapter III provides If any member or members of staff or student or students of the College or University shall claim to have suffered or to be liable to suffer an injustice in consequence of any decision or sentence of the Board or shall claim that any decision of the Board is inconsistent with the Statutes such member or members of staff student or students may within three weeks of the date on which such decision or sentence has been publicly announced or has been conveyed to the person or persons concerned inform the Registrar of an intention to appeal to the Visitors If

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  • in favour of the unsuccessful petitioner or other parties claiming costs against the Minister In that light any observations of Kelly J on the awarding of costs in so called public interest litigation could be considered obiter but in any event I did not find there is anything in the judgment of Kelly J in that case which would support the contention that the public interest element coupled with issues of general public importance govern or determine the exercise of a Court s discretion on the issue of costs On the contrary his judgment indicates there are other factors which may also have to be taken into account according to the circumstances of the case As previously indicated these elements are of course relevant factors which may be taken into account in the circumstances of a case as a whole Because these elements are found to be present it does not necessarily follow that an award of costs must invariably be made in favour of an unsuccessful plaintiff or applicant Equally the absence of those elements does not for that reason alone exclude a Court exercising its discretion to award an unsuccessful applicant his or her costs if in all the circumstances of the case the Court is satisfied that there are other special circumstances that justify a departure from the normal rule The rule of law that costs normally follow the event that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis As a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary or depart from that rule of law if in the special circumstances of a case the interests of justice require that it should do so There is no predetermined category of cases which fall outside the full ambit of that jurisdiction If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the Courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case warrant such a departure It would neither be possible or desirable to attempt to list or define what all those factors are It is invariably a combination of factors which is involved An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue Accordingly any departure from the general rule is one which must be decided by a Court in the circumstances of each case In Curtin v Clerk of Dail Eireann Others Supreme Court Unreported 6th April 2006 this Court stated The general rule is that costs follow the event subject to the Court having a discretion for a special reason to make a different order It is a discretion to be exercised in the circumstances and context of each case and is one which is so exercised from time to time Counsel for all parties referred to previous decisions of this Court and the High Court in which a discretion was exercised to make an order concerning costs which did not follow the general rule It would neither be possible nor desirable to lay down one definitive rule according to which exceptions are to be made to the general rule The discretionary function of the Court to be exercised in the context of each case militates against such a definitive rule of exception and it is also the reason why previous decisions of such a question are always of limited value Even accepting the submission of Counsel for the appellant that the learned trial Judge did not approach the question of costs on the basis that there was a category of cases which by reference to the two principles in question costs should invariably be awarded to unsuccessful applicants or plaintiffs I do feel nonetheless that there was undue weight given to those principles as determining factors I think it goes too far to say that the Court s discretion as to costs in this type of public law litigation is not in any way dependant on one or more of the issues of fact or law raised being decided in favour of the plaintiff or applicant Such an approach seems to discount excessively if not altogether exclude from consideration the normal rule that if the issues in the case have been decided in favour of one party that normally means that the successful party is entitled to his or her costs I now turn to the question of the learned trial Judge s reference to previous proceedings brought by the appellant in this case and the Mulcreevy proceedings to which the learned trial Judge also referred I think it is evident that these proceedings were a material part of the learned trial Judge s conclusion that the issues raised in this particular case fell within the second principle which she announced namely that they were of sufficient general public importance This is clear from her statement where it is said of particular significance on the issue of costs in my view is and she went on to refer to the plaintiff s earlier proceedings and then to the other successful proceedings She concluded by stating immediately after the reference to those proceedings Against that background I consider that the issues raised in these proceedings were truly ones of general public importance While one could not say that earlier litigation was never relevant from some contextual point of view on an issue of costs in the circumstances of this case I find it difficult to see how the earlier proceedings referred to could have a material bearing on whether the issues in this particular case could be considered to be of such general public importance to justify an exceptional departure from the ordinary rule that costs follow the event I think the learned trial Judge was incorrect in taking either one of those cases into account for the purpose of determining whether issues in this particular case fell into that category In the circumstances I feel that this Court is required to review the decision of the costs awarded in the High Court and exercise its own discretion on the issue as appealed by the respondent Turning to the substantive question of costs of the High Court the appellant argued that in dealing with the issue in the exercise of its discretion this Court should nonetheless conclude that the particular circumstances of this case does indeed warrant a departure from the normal rule in awarding costs to the appellant of the proceedings in the High Court The appellant relied as the factors to be taken into account on the fact that he was not defending any personal interest in bringing these proceedings and was seeking to ensure that the project in question and particularly insofar as it affected a national monument was carried out in accordance with law He reiterated that the case involved issues of such public importance that this factor should also be weighed in the balance in deciding to award him his costs Accepting that the appellant brought the proceedings in the interests of promoting compliance with the law and without any private interest in the matter I do not consider that the issues raised in the proceedings were of such special and general importance as to warrant a departure from the general rule Undoubtedly it could be said that issues concerning subject matters such as the environment or national monuments have an importance in the public mind but a further factor for the Court is whether the legal issues raised rather than the subject matter itself were of special and general public importance In this case nothing exceptional was raised in the issues of law which were before the Court so as to warrant a departure from the general rule In my view having regard to all the circumstances of the case the ordinary rule should apply to the costs of the High Court proceedings and that costs should follow the event Accordingly I would allow the appeal against the order for costs made in favour of the plaintiff in the High Court and substitute an order awarding costs to the respective defendants respondents of the High Court proceedings Costs of the Appeal The appellant appealed the decision of the High Court dismissing these proceedings This Court having upheld the decision of the learned High Court Judge the appellant was unsuccessful Costs should follow the event there being in my view no circumstances arising in the appeal which would justify departure from the normal rule Accordingly the appellant must pay the costs of the respondents of his unsuccessful appeal THE SUPREME COURT 444 04 133 139 05 Murray C J Denham J Hardiman J Geoghegan J Kearns J BETWEEN DOMINIC DUNNE PLAINTIFF APPELLANT AND THE MINISTER FOR THE ENVIRONMENT HERITAGE AND LOCAL GOVERNMENT IRELAND AND THE ATTORNEY GENERAL AND DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL DEFENDANTS RESPONDENTS JUDGMENT of Murray C J on the question of costs delivered on the 6th day of December 2007 In its substantive judgment on the merits in this case the Court unanimously upheld the judgment of the High Court Judge and dismissed the appeal The appeal was concerned with questions as to whether s 8 of the National Monuments Amendment Act 2004 offended Articles 5 10 15 and 40 of the Constitution and whether it breached the law of the European Communities and in particular the provisions of Council Directive 85 337 EEC of 27th June 1985 as amended by Council Directive 97 11 EC of 3rd March 1997 Although the appellant lost his case in the High Court the learned High Court Judge awarded him costs against the respondents notwithstanding the normal rule that the losing party should pay the costs of the proceedings The respondents have appealed against the High Court Order awarding costs of the High Court proceedings to the appellant When judgment was delivered on the substance of the appeal the issue concerning the costs of the High Court and the costs of the appeal to this Court was adjourned for submissions on a later date The appellant seeks to uphold the Order awarding him costs and as regards the appeal to this Court asks the Court to exercise its discretion by awarding him his costs of the appeal or in the alternative making no Order as to costs The High Court costs The appellant primarily relied on the terms of the judgment of the High Court delivered on 18th March 2005 on the question of costs In her separate written decision on the question of costs the learned High Court Judge referred to the submission made by the parties and in particular considered two decisions of the High Court namely McEvoy v Meath County Council 2003 1 IR 208 and Sinnott v Martin 2004 1 IR 121 relied upon by the appellant Having considered those authorities both of which she noted cited a decision of the English High Court in R v Lord Chancellor ex parte Child Poverty Action Group 1991 1 WLR 347 the learned High Court Judge concluded stating I am satisfied that Counsel for the Plaintiff has correctly identified the principles established in the recent jurisprudence of this Court in accordance with which the Court should exercise its discretion in considering an application for costs by an unsuccessful plaintiff or applicant in public law litigation at any rate against a protagonist which is a public body I now propose applying those principles to the instant case The two principles identified by the learned High Court Judge were 1 That the Plaintiff was acting in the public interest in a matter which involved no private personal advantage and 2 That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs being made in his favour These were described as the principles which governed the Court s discretion to depart from the normal rule that costs follow the event The fact that the respondent or defendant was a public body was also considered relevant In reaching her conclusion the learned High Court Judge also stated that However as a matter of principle I do not consider that the Court s discretion as to costs in this type of public law litigation is in any way dependant on one or more of the issues of fact or law raised being decided in favour of the Plaintiff or the Applicant Accordingly there will be an order for costs in favour of the Plaintiff against all the Defendants Counsel for the respondent submitted that the learned High Court Judge was incorrect in applying these two principles as determinative factors and in effect was establishing a category of cases in which the normal rule of costs following the event would not apply It was submitted that in any event the learned High Court Judge did not exercise her discretion correctly in placing excessive reliance on the two principles referred to the exclusion of all the circumstances including the fact that the respondent had won the case A second aspect of the respondents argument was the submission that the learned trial Judge wrongly considered as relevant the fact that the Plaintiff had been successful in obtaining an interlocutory injunction halting the road project in question in earlier and separate proceedings referred to as Dunne No 1 and also that this had in turn led to a successful challenge by another party in other proceedings to a Ministerial Order concerning the same road project The passage in the decision on costs to which Counsel for the Respondents referred reads as follows Of particular significance on the issue of costs in my view is the fact that the plaintiff was successful in obtaining an interlocutory injunction in Dunne No 1 which effectively halted road works at Carrigmines Castle without a valid consent under s 14 of the National Monuments Act 1930 as amended This led to the making on 3rd July 2003 of the joint consent and the Ministerial Order which were subsequently successfully challenged in Mulcreevy v Minister for the Environment Heritage and Local Government and Dun Laoghaire County Council 2004 1 I L R M 419 That successful challenge in turn provoked the enactment of a special provision in s 8 of the Act of 2004 in relation to the south eastern route which I have concluded was given by a policy designed to ensure the completion of the motorway without any input in relation to national monument protection implications from any external party to the first and fourth defendants and their respective advisors Against that background I consider that the issues raised in these proceedings adopting the words of Dyson J in the CPAG case at p 358 were truly ones of general public importance They were difficult issues of public law It was in the public interest that they be clarified In the course of the appeal Counsel for the respondent submitted that the previous proceedings were not factors which the learned trial Judge should have taken into account in determining that the issues in this particular case were of general public importance Counsel for the appellant submitted that firstly the learned High Court Judge was correct in the approach which she adopted and secondly she was in any event exercising her discretion in the ordinary way having regard to all the circumstances of the case and that this Court should not interfere with the exercise of that discretion As regards the second aspect of the respondents submission Counsel for the appellant submitted that on a correct interpretation of the learned trial Judge s decision she did not rely on the previous proceedings as a material fact in her decision to award costs In any event it was submitted that the decision which she made was within the ambit of her discretion At least on one view of the learned trial Judge s judgment the question of costs was decided on the basis that this case fell into a particular category of cases in which a discretion to depart from the normal rule would invariably be governed by the two principles identified by Counsel on the basis of the case law cited as establishing two determining principles In the course of her decision the learned High Court Judge stated that the Plaintiff was within that rare category of litigants who truly have no private interest in the outcome of the proceedings I am not sure that it is such a rare category but if the alternative view advanced by Counsel for the appellant were taken namely that the learned trial Judge s decision was within the normal ambit of her discretion to depart from the general rule the question still arises as to whether any undue weight was given to the two principles relied upon The basic law governing the question of costs in civil proceedings may be found in s 14 2 of the Courts Supplemental Provisions Act 1961 which provides that the jurisdiction of the High Court shall be exercised so far as regards pleading practice and procedure generally including liability to costs in the manner provided by the Rules of Court Order 99 of the Rules of the Superior Courts provides that the costs of and incidental

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  • breakdown into individual 1800 numbers was The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge MTC by the defendant Access to call details regarding the quantity of 1800 numbers issued by the defendant the number of minutes trafficked per number by reference to access method and the names of the parties to whom the numbers were allocated would enable the plaintiff to access the manner in which the MNO origination charge MTC was imposed In terms of assessing the quantum of its alleged loss such information would demonstrate how in a market highly sensitive to increases in price the discriminatory imposition of the MNO origination charge MTC caused the plaintiff to lose customers to operators who were are not charged the MNO originators charge MTC by the defendant In short this category would enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination charge MTC to the defendant The plaintiff believes that expert analysis of these figures will establish a direct and conclusive correlation between the discriminatory behaviour of the defendant the loss suffered by the plaintiff 18 The second sentence only refers to minutes trafficked per number which I take to relate to individual number But that sentence refers only to the manner in which the charge was imposed which does not appear to be an issue in the case at all In any event the category 9 information would cast no light on the manner in which the charge was imposed The other sentences refer more generally to loss of customers to operators who were not required to pay the charges Leaving aside the language actually used by the Respondent s solicitors one must examine in concrete terms the need to break the information down into individual numbers The Respondent refers and is entitled to refer in general terms to loss of market share an entirely legitimate approach to establishing loss It also accepts that it will be able to call witnesses in order to establish the effects of the alleged discriminatory pricing on other operators in the State The Respondent s solicitors letter to the learned judge contained the following sentence The discovery made to date by the defendant supports this reasoning and bears out the plaintiff s belief that its competitors received a huge growth in minutes when the discrimination by the defendant occurred which grew to a high point and then dropped away almost completely in some cases when the defendant took steps to address the discrimination as a result of the plaintiff instituting the two actions that are before the Court 19 That is precisely the sort of case I would expect the Respondent to wish to establish contemporaneously with the Appellant s allegedly discriminatory pricing policy its sales dropped and those of its more favourably treated competitors rose sharply A court would quite obviously be concerned at the possibility that it was not sufficiently facilitating a litigant s access to information which was essential to establishing the level of damage it has suffered However I fail to see in the present context that the Respondent as plaintiff in the High Court action must undertake the burden of proving the level of telephone traffic on individual 1800 numbers Mr Paul Anthony McDermott on behalf of the Respondent explained at the hearing that since his client s case was based on damage to its call card business the breakdown into individual 1800 numbers was necessary in order to establish the extent to which each 1800 number was used in connection with call cards In view of the statement already cited that the category 8 discovery enabled it to establish that the international operators had benefited from a huge growth in minutes when the discrimination by the defendant occurred and that this fell off when the alleged discrimination ceased I cannot see that more is needed Mr McDermott expressed concern that even if the plaintiff produces strong statistical evidence of differential movements in traffic explanations might be put forward based on single unusual or idiosyncratic events All of this seems to me rather far fetched It would be for the defendant to produce evidence of such events and to discover any documents in its possession in relation to them It seems to me that if such an issue were to arise during the trial the trial judge would be able to deal with it as it arose and make an ad hoc order for discovery However even if there is a technical issue here which I have not fully grasped and it is a highly technical case it becomes relevant to consider the concessions offered by the Appellant 20 The Appellant has offered to concede that during the period during which it is agreed that the Appellant imposed what are claimed to be discriminatory charges the entire of any growth in 1800 traffic to mobiles and half of that growth in the case of payphones to international operators related to the use of phone cards Mr McDermott accepted that this concession solved the problem insofar as the agreed periods was concerned He claimed that the concession was insufficient in two respects Firstly there was evidence an internal e mail was examined in detail at the hearing from the Appellant s discovery that the policy of imposing charges was not immediately and effectively implemented by imposition of charges on all international operators The extent of this slippage was not quantified but I refer to the suggestion of the Respondent quoted above that this growth dropped away almost completely in some cases when the defendant took steps to address the discrimination I am not satisfied that this limitation in the concession takes away significantly from its value Secondly the Appellant limits its concession in the payphones case It accepts that fifty percent of any increase is related to call cards The situation in that case is less clear cut In the circumstances of the case generally I agree with the proposal of Kearns J regarding that case I prefer to reserve my final position regarding the order in that case until the eventuality mentioned by Kearns J I return to consider the proportionality issue It is worth repeating the language used by Murray J as he then was when following a review of the authorities in his judgment in Framus Limited and others v CRH plc and others 2004 2 I R 20 at 38 I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial McGuinness J and Geoghegan J agreed with that judgment One of the authorities cited was Ryanair plc v Aer Lingus c p t 2003 4 I R 264 In my own judgment in that case at page 287 I said The court in exercising the broad discretion conferred upon it by O 31 r 12 2 and 3 must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required It should also consider the necessity for discovery having regard to all the relevant circumstances including the burden scale and cost of the discovery sought The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation It may have regard of course to alternative means of proof which are open to the applicant These may no doubt include the possible service of notices to admit facts or documents But there are two sides to litigation The behaviour of the opposing party is relevant That party may for example have made or may offer to make admissions of facts and thus persuade a court that discovery on some issues is not necessary 21 I have come to the conclusion that the very unusual burden and heavy cost of the discovery in this case requires the Court to have a clear view of the litigious benefit to the plaintiff from obtaining the extremely detailed breakdown of information which is the only remaining issue The Respondent has already had the benefit of discovery on a huge scale It accepts that this enables it to establish that the alleged discriminatory pricing had a very significant market effect I do not believe that it is established at this stage of the litigation that the likely benefit if any to the Respondent of obtaining the category 9 discovery is sufficient to justify the highly unusual and burdensome form of discovery sought 22 For these reasons I would allow the appeal I agree however with Kearns J that the Respondent should be at liberty to make a fresh application for discovery of the material covered by category 9 following determination of the issue of liability I agree with the form of order proposed by Kearns J in the penultimate paragraph of his judgment THE SUPREME COURT Geoghegan J Fennelly J Kearns J Nos 374 375 of 2006 BETWEEN DOME TELECOM LTD PLAINTIFF AND EIRCOM PLC DEFENDANT JUDGMENT delivered the 5th day of December 2007 by Mr Justice Fennelly 1 I have had the opportunity of considering the judgments of Geoghegan J and Kearns J before writing my own 2 The first issue raised by the Appellant is that the form of order made by the High Court has the effect of directing a party to create documents for the purposes of the action For all the reasons given by Geoghegan J I would reject this ground of appeal 3 It is of course axiomatic that a court will only order discovery of documents or records which exist If no record has been made of a relevant conversation meeting or event a court will not for the purpose of discovery require a party to make one 4 That is not what is required by the High Court order in this case Undoubtedly the order obliges the Appellant to take very elaborate complex and costly steps in order to make information available in a form in which it has not previously existed But the call data records CDR s exist and are capable of being retrieved The order is not equivalent to requiring a party to make a record where one has never existed 5 The rules of court have not been adapted so as to make their objectives conformable to modern technology The courts have nonetheless been astute to ensure that genuine discovery can be ordered even when advances in technology have the effect that discovery takes a very different form from that of documents as traditionally understood In former times there would have been a written record of every commercial transaction Old methods of record keeping could not have coped with the sheer volume of traffic generated by the new means of communications I accept that failure by the courts to move with the times by adapting the rules to new technology might encourage unscrupulous businesses to keep their records in a form which would defeat the ends of justice I would therefore like Geoghegan J reject this ground of appeal 6 The question which remains is whether the High Court order should be set aside as amounting to a disproportionate measure having regard to the balance between the necessity from the Respondent s point of view of discovery of the Category 9 documents and the burden placed on the Appellant of complying with the order 7 I gratefully accept the very comprehensive summary which Kearns J has given of the facts and the history of the two cases and the background facts Since I agree with most if not all of the conclusions of Kearns J I can be brief 8 I will consider a the issue in the action to which the Category 9 discovery is said to be relevant b the reason advanced to justify the necessity for the order for its discovery c the burden placed on the Appellant of complying with the order 9 I can commence with c McKechnie J accepted that the order would place perhaps a heavy burden on the Appellant The nature of that burden is described in the judgment of Kearns J and I do not propose to rehearse the evidence The Appellant has described the technical measures necessitated the length of time to be taken the additional staff to be engaged the need for additional computer equipment and programmes and the expense Kearns J referred to the undoubtedly burdensome nature of the form of discovery sought and to the gargantuan task which an order under category 9 would impose on the defendant 10 I accept that it should be only in unusual cases that a court will decline to order discovery of relevant and necessary documents but I think that the unusual scale and extent of the burden placed on the Appellant requires the Court to examine whether what is sought is likely to produce genuinely useful evidential material 11 One then looks at the issues as pleaded and in particular any admissions made 12 Firstly it does not appear that the category 9 material is required to establish liability The Respondent s complaint is that the Appellant engaged for certain periods in unlawful and discriminatory pricing of its services The Appellant is alleged to enjoy a dominant position in the market for public fixed telephony network and services markets in the State the leased lines market in the State and the market for payphones in the State It is claimed that it is obliged by law to adhere to the principle of non discrimination with regard to interconnection and to ensure that charges for interconnection follow principles of transparency and cost orientation imposed by a European Community directive and that the Appellant s license prohibits it from engaging in cross subsidising or unfairly subsidising any service or in discrimination between persons regarding the provision of any licensed service or access to any telecommunications network 13 The statement of claim alleges that from specified dates the Appellant imposed a telecommunications interconnection charge Kearns J explains the MAC mobile access charge and the PAC payphone access charge imposed on all operators in the State between certain dates The essence of the claim is that these charges were imposed on the Respondent and other operators in the State but not on telecommunications operators outside the State It is claimed that these actions constituted breaches of Articles 81 and 82 of the Treaty Establishing the European Community sections 4 and 5 of the Competition Act 1991 and of the licensing conditions pleaded as well as various regulations and a Council Directive 14 It is not claimed that the category 9 documents will assist in establishing any of these complaints Moreover the Appellant does not dispute the facts constituting the basic complaint It accepts that MAC and PAC were applied to national operators alone in the period running as regards MAC from 15th October 2000 until 1st October 2001 and as regards PAC from 1st April 2000 until 1st December 2002 Furthermore the Appellant accepts that this situation presented an arbitrage opportunity to certain operators which would enable them better to compete with the Respondent The Appellant does not of course accept that its MAC and PAC charges were unlawful It claims that they were made necessary by regulatory and technical constraints That is however irrelevant at this stage For present purpose it must be presumed that the Respondent s claim is maintainable in law 15 Kearns J has described the nature of the debate before the High Court in some detail citing from a number of key documents I agree with him that the category 9 documents are essentially sought only in order to assist the Respondent in the assessment of the damages it seeks That is of course perfectly legitimate It is thus necessary to refer to the reason given for the request for Category 9 discovery 16 What is sought is information relating to the volume of minutes trafficked per month in respect of each 1800 number issued by reference to access method Thus as is stated in the letter written by the Appellant s solicitors to the learned High Court judge which is quoted more fully by Kearns J the essential difference between the parties remains whether or not it is necessary for the proper disposal of the within proceedings for the plaintiff to have information on the volume of freephone minutes trafficked per month in respect of each 1800 number in addition to information on the total volume of such traffic That was indeed the ambit of the debate at the hearing of the appeal 17 The reason advanced to justify the need for the breakdown into individual 1800 numbers was The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge MTC by the defendant Access to call details regarding the quantity of 1800 numbers issued by the defendant the number of minutes trafficked per number by reference to access method and the names of the parties to whom the numbers were allocated would enable the plaintiff to access the manner in which the MNO origination charge MTC was imposed In terms of assessing the quantum of its alleged loss such information would demonstrate how in a market highly sensitive to increases in price the discriminatory imposition of the MNO origination charge MTC caused the plaintiff to lose customers to operators who were are not charged the MNO originators charge MTC by the defendant In short this category would enable the plaintiff

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  • is no rule in existence precisely covering the situation has an inherent power to fashion its own procedure and even if there was a rule applicable the court is not necessarily hidebound by it It is common knowledge that a vast amount of stored information in the business world which formerly would have been in a documentary form in the traditional sense is now computerised As a matter of fairness and common sense the courts must adapt themselves to this situation and fashion appropriate analogous orders of discovery In order to achieve a reasonable parity with traditional documentary discovery it may well be necessary to direct a party to create documents within the meaning of the notice of appeal It may indeed also be necessary to direct a party to create documents within the meaning of the notice of appeal even if such documents do not exist at the time the order is made I am deliberately using quotation marks because I do not intend to adjudicate on the quasi metaphysical argument of Mr Paul Anthony McDermott counsel for the respondent that the documents do in fact exist At any rate that matter can probably be argued both ways but I would be firmly of opinion that an order of discovery can be made which involves the creation of documents which do not exist made in the kind of context in which it is sought in this case Otherwise potential litigants could operate their business computers in such a way that they would be able to evade any worthwhile discovery In expressing the above views I accept that superficially I am perhaps going a step further than the English authorities have done in so far as their rule of court can apparently be interpreted to cover computer discovery I have no hesitation however in making that extension Subject to the qualification which I have just mentioned I accept the broad thrust of the English Australian American and other authorities in common law jurisdictions relied on by the respondent But I do not intend to review them in detail as it seems to me it is sufficient to express approval of the judgment of Vinelott J in Derby v Weldon No 9 1991 1 W L R 652 In that case it was held by the English High Court that the data base of a computer in so far as it contained information capable of being retrieved and converted into readable form and whether stored in the computer itself or recorded in backup files was a document within the meaning of the relevant English rule of court and that there was therefore power to order discovery of what was in that database with the proviso that the discretion to order production for inspection and copying would not be exercised so as to give an unrestrictive access to another party s computer and such inspection would be ordered only to the extent that the parties seeking it could satisfy the court that it was necessary for disposing fairly of the cause or matter or for saving costs in the light of any evidence as to what information could be made available how far inspection or copying of the database was necessary or whether the provision of printouts would suffice and what safeguards were required to avoid damage to the database and minimise interference with its everyday use Essentially Vinelott J was applying by analogy a judgment of Walton J in Grant v South Western and County Properties Limited 1975 Ch 185 where the question arose of whether a tape recording of a telephone conversation was a document Two judges in that case took opposite views but Walton J considered it an absurdity that if two parties to litigation recorded a conversation one on a tape recorder and one in shorthand the one would and the other would not be discoverable and he said the following The mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required Nor again if he kept them by means of microfilm which could not be read without the aid of a projector Vinelott J agreed with Walton J and applied the same principle to computers It is important to observe that the judgment in Derby and Co Limited v Weldon has already been cited with approval by this court in the judgment of Denham J in Keane v An Bord Pleanála 1997 1 I R 184 In the respondent s written submissions there is included the following apposite paragraph The appellant s submissions accept that a database is a document However they seem to be suggesting that it is only what is at the forefront of the database on the date on which discovery is ordered that is discoverable Thus if you delete one version of a letter and type up a fresh one the earlier version is not discoverable because to download it from the hard drive of the computer would be to create a new document This does not reflect the reality of how computers operate Once a particular calculation has been done on a computer then the only issue is one of retrieval and this is not the same as creating a new document It is submitted that a confusion between these two concepts lies at the heart of the appellant s submissions As I have already indicated I do not intend to rest my judgment on whether new documents are created or not as it may lead to unnecessary confusion Indeed the paragraph which I have just cited from the respondent s submissions needs considerable qualification If for instance in the pre computer days one version of a letter was replaced by a fresh version the earlier version would probably have been torn up and destroyed Strictly speaking it would have been necessary under an order for discovery to have included the torn up letter in the affidavit of discovery as a document which had been in the possession of the discovering parties but there would obviously have been no obligation to produce it It would seem to me that the court s discretion in ordering discovery of matters buried in a computer should be directed towards confining the information obtained as far as possible to what should reasonably have been available under traditional documentary storage It is clear also from the authorities that the discretion must take into account the other factors mentioned in Derby I would not therefore allow the appeal on either of the first two grounds I now turn to consider the third ground which is altogether more difficult The key question that arises under this ground of appeal is whether in all the circumstances the discovery sought is oppressive to an extent that it is unreasonable to order it Terminology is important in this context and for the purposes of this judgment at least I intend to distinguish between the concept of discovery being necessary and discovery being proportionate In some of the case law and at times in the oral and written submissions the issue of whether the discovery is disproportionate or not is treated under the heading necessary I suspect that is because the Rules of Court in this and other common law jurisdictions provide that discovery must be relevant and necessary They do not expressly provide that it must be say proportionate or reasonable or that it must not be oppressive However I think that the distinction is helpful Although what is meant by necessary in Irish law and particularly as explained by Fennelly J in Ryanair v Aer Rianta 2003 4 IR 264 a clear case in my view has been made out on behalf of the respondent that the discovery sought is necessary in that sense But discovery may be necessary and yet so disproportionate as to render it unreasonable for a court to benefit the party seeking such discovery by making the order For example one could conceive of cases where the expense of what might otherwise be necessary discovery would put the party out of business That might not necessarily prevent the order being made but a court would have to weigh up that factor quite heavily in considering whether it should make the order The distinction which I am making seems to me to be particularly important in the light of what was clearly held in the Ryanair case At p 272 of the report Fennelly J in his judgment said the following On the question of necessity counsel referred to the judgment of Kelly J in the High Court in Cooper Flynn v Radio Telefís Éireann 2000 3 I R 344 None of the authorities in particular none of the Irish authorities support the defendant s argument that the right to discovery is contingent on the exhaustion of other procedures An applicant is entitled to discovery even if the facts in question could be established by other means I think that it is a reasonable corollary from this passage that if a party had a legitimate concern as to whether a particular category of discovery more limited than what he was seeking might not be sufficient or even might not give him sufficient comfort in attempting to prove his case the fuller discovery being sought would be regarded as necessary It has often been pointed out also that in most cases if documents are relevant they are also necessary This does not always apply however It would seem to me that a legitimate concern as to a gap in its proofs if it had to rely only on category 8 in the discovery has been demonstrated on behalf of the respondent The only question therefore that has to be considered is whether in all the circumstances the discovery of category 9 would be disproportionate and by that I more or less mean oppressive and unreasonable In considering this issue the first question which I must ask myself is in what circumstances should this court set aside the discovery order of the High Court on this particular ground and in the general context in which the order was made I have added those last few words because in my view it is appropriate to take into account that the learned High Court judge was not just dealing with an isolated discovery motion but was also conducting overall management of the case This was a case assigned to the competition court Case management in that court and in the commercial court is particularly important and is directed towards the efficient and speedy completion of the litigation It has been stated more than once in judgments of this court that this court should be slow to set aside any management ruling made in that context Quite apart from the special reluctance which this court would have in interfering with an order made in the course of case management by the intended trial court there are other universal principles which must also be considered This court can only concern itself with whether the learned trial judge applied the correct principles of law in making the discovery order now in controversy On an issue such as whether a particular discovery order is disproportionate or not there may well be two perfectly legitimate points of view I do not think therefore that the question which I have to consider is whether I agree with the order made or not but rather whether the learned trial judge applied the correct principles in arriving at his decision and whether on the basis of those principles it was open to him to make that decision If I had been the High Court judge hearing this application for discovery I would have had great difficulty deciding whether I should make the order or not particularly in the light of the sound argument put forward on behalf of the respondent that there was a gap or at least a potential gap in its necessary proofs if the full discovery sought was not made I am therefore unable to find that there was an error in legal principle in the view adopted by McKechnie J and I am quite satisfied from the transcript that he understood and considered the arguments on both sides Just to take one simple example if one reads the transcript of the hearing on the 16th May 2006 which was one of a number of hearings at p 11 there is the following bit of dialogue between McKechnie J and Mr Travers counsel for the appellant Mr Justice McKechnie How is the plaintiff going to differentiate between the 1800 numbers which that may have had on a direct bearing on the allegation of discriminatory pricing and the use of 1800 numbers which will not Let me repeat that How is the plaintiff going to differentiate how is he going to make use of the documentation in a meaningful way to support the allegation whether it is right or wrong of discriminatory pricing on behalf of Eircom when in fact the 1800 numbers can be used for more than one purpose Mr Travers Well what we are accepting if you like by way of an alternative to our main submission that really this discovery is not necessary is that we would accept in principle all of whatever increases that were attributable to if you like this arbitrage opportunity Therefore the plaintiff has to come into court and demonstrate that the potential cake lost to it is so large and come into court to prove how much of that cake it might reasonably have expected to have obtained There was further extensive discussion and Mr McDermott explained in detail to the judge why the concession already referred to was not attractive to the respondent and was not really in the last analysis a concession At that hearing on the 16th May 2006 the learned High Court judge was at pains to point out that he had clearly understood that the appellant s case on the previous occasion had been that there was no need to make an order in relation to category 9 because the information would be included under category 8 He effectively cross examined Mr Travers about this citing parts of an earlier transcript which Mr Travers was forced to disown All Mr Travers could say was that it was never the understanding of the appellant that it would provide all of the information regarding the total volume of traffic at which point he was interrupted by McKechnie J who pointed out that category No 9 was meaningless in that event At that point Mr Travers referred to the letter written to the judge at his request on behalf of the appellant a few days earlier in which it was stated that there would be 26 billion call data records Like the trial judge I do not find myself impressed by these kind of figures as they are meaningless unless properly interpreted to the court From the general tone of the affidavits and correspondence I do not get the impression that the appellant from the beginning regarded the discovery under category 9 as being so extreme that it would be impossible to comply with it The major emphasis on alleged disproportionality seemed to emerge at the later stages The appellant s argument that the discovery sought was wholly disproportionate would have been more impressive if from the beginning there was clear evidence as to why that was so giving very precise details of the time involved the number of personnel involved the confidentiality aspect etc all of which could have been dealt with in reply by the respondent s own experts It was stated in the written and oral submissions of the appellant in this court that complying with an order for discovery under category 9 would require the purchase of additional computer hardware costing in the region of 150 000 The respondent in its written submissions claims that that figure was never adduced in evidence and has been plucked out of the air The respondent legitimately complains that evidence of that kind ought not to be put forward by way of submission It must be adduced in the ordinary way with an opportunity to have it tested in court and responded to if necessary by counterevidence My overall impression is that essentially the appellant was trying unsuccessfully to frighten the court by the mention of what superficially at least would be large figures but figures unsupported by solid evidence I see nothing perverse in the non acceptance of this argument by the learned High Court judge Finally there is another aspect of the case which dissuades me from advocating any interference with the order of the learned High court judge Whilst it is perfectly obvious that on any view considerable time and expense will be involved in furnishing the category 9 discovery there must be offset against that the potential saving in time and cost which may well materialise when the discovery is completed It would seem to me that at that stage it is likely that each party will be in a strong position to form a view as to who in reality is going to win this case or if there is to be a win to what extent At best the case may more easily settle But short of settlement there would be every probability in my view of considerable narrowing of issues either by agreement or as a consequence of case management For this reason also I would not favour some kind of partial hearing of the case based perhaps on the concession and or one type of phone call I think that would add to the litigation and to the appeals and possibly render it even more uncertain as to the ultimate outcome of the action At any rate it does not seem to me that any compromise position was really argued for Having considered all the options and for the reasons which I have clearly indicated I would dismiss the appeal THE SUPREME COURT 374 2006 375 2006 Geoghegan J Fennelly J Kearns J BETWEEN DOME TELECOM LIMITED PLAINTIFF RESPONDENT AND EIRCOM LIMITED DEFENDANT APPELLANT JUDGMENT of Mr Justice Geoghegan delivered the 5th day of December 2007 These are two appeals from discovery orders in which essentially the same issues arise Both parties are telecommunications companies the nature of whose business is to use the wording in the respondent s written submissions the generation and recording of millions of pieces of telecommunications data on a continuous basis Both cases are concerned with alleged anti competitive practices affecting the sale of call cards The respondent which is plaintiff in both actions sought extensive discovery from the appellant much of which has been agreed or furnished but a dispute arose over one particular category the nature of which I will be explaining In a dispute over discovery it is important that the court should not enter into the merits of the case though there must be a clear understanding as to the nature of the issues I have come to the conclusion that the best way of describing the respondent s case for obtaining the disputed category of discovery which was acceded to by the High Court McKechnie J is to quote from the succinct summary contained in the respondent s written submissions to this court The relevant passage reads as follows The respondent s business is inter alia the sale of call cards through which it offers its customers telecommunications services such as cheap telephone calls to international destinations Customers access these services by dialling one of the numbers printed on its call cards 1800 freephone numbers are used to allow customers to access the services without incurring an initial access charge The respondent obtains its telecommunication services from a national telecommunications operator which is licensed by the Office of Director of Telecommunications Regulations ODTR referred to herein as a licensed operator In turn the licensed operator obtains its services from the appellant The principal basis of the respondent s claim is that the appellant imposed certain charges on licensed operators for the use of 1800 freephone numbers where the numbers were dialled by customers from mobile telephones referred to herein as the mobile access charge and from public payphones referred to herein as the payphone access charge The appellant did not impose said charges on telecommunications operators located outside Ireland referred to herein as international operators who obtained the same telecommunication services from the appellant The respondent alleges that this constituted discriminatory pricing which benefited international operators and in turn the appellant s competitors who obtained services from such international operators and discriminated against licensed operators and in turn the appellant who obtained its services from a licensed operator It has been accepted by the appellant that for certain periods of time it failed to apply the charges to all operators referred to by the appellant in affidavits filed in the court as the arbitrage period but it pleads an objective justification with respect to those periods The respondent disputes that the discrimination was limited to the so called arbitrage period admitted by the appellant A much fuller factual account of the business workings is given in the judgment of Kearns J which I gratefully adopt The mobile access charge is generally abbreviated to MAC and the payphone access charge to PAC The appeal number 374 2006 relates to MAC and the appeal number 375 2006 relates to PAC The disputed discovery order made the 30th August 2006 in the case to which appeal 374 relates reads as follows That the defendant do within six months from the date hereof make discovery on oath of the following documents which are or have been in its possession power or procurement The volume of minutes trafficked per month from the 1st day of July 2000 to the 7th day of April 2005 in respect of each 1800 number by reference to access method by the defendant to international carriers and or other entities to be limited for the time being to those identified and set forth in the Schedule hereto where the volume of minutes trafficked to that international carrier and or other entity in any given month exceeded 5 000 minutes the documents within the power of the defendant to be created from the defendant s raw data and data bases and using the defendant s own database A similar order was made by the High Court in the action to which appeal 375 relates i e the action relating to PAC the only difference being the dates the specified period in appeal No 375 is 31st August 1999 to the 23rd December 2003 The discovery applications in these two cases have had a long and troubled history which I do not find it necessary to recount in detail With a view to putting the latest dispute into some kind of context I will explain this much As already mentioned there were a number of different categories of documents sought and it is category 9 which is now in controversy At one of a number of hearings before the learned High Court judge it was suggested by the appellant that he postpone making any order in relation to category 9 because in the view of the appellant the information allegedly needed by the respondent from that category would in practice be furnished with the discovery in respect of category 8 Category 8 read as follows All invoices raised and issued by the defendant to licensed operators and or international carriers and or other entities relating to the operation of 1800 freephone numbers from the 1st July 2000 to the date hereof More accurately I should state that that particular wording related to appeal 374 The corresponding category 8 in respect of the case to which appeal 375 relates contained a different date i e 31st August 1999 In respect of both category 8 and category 9 and in each of the two cases reasons for the requests were set out in the relevant requesting letter In respect of the case the subject of appeal 374 the reasons for requiring category 8 were stated as follows The defendant has claimed that it applies the MNO originating charge MTC in a non discriminatory manner and or that differences in treatment are objectively justified contrary to the allegation of discrimination made by the plaintiff Discovery of invoices raised by the defendant in respect of the provision of 1800 numbers can reasonably be expected to demonstrate the veracity of its denial in this regard In addition to demonstrating whether the charges are in fact imposed at all the invoices may demonstrate the credit periods afforded to operators in relation to payment of the charges To the extent that certain operators are afforded a longer credit period in which to discharge the MNO origination charge MTC invoices discovered by the defendant may confirm this particular form of discrimination In respect of the case to which appeal 375 relates the wording is identical except that PAC is substituted for MNO origination charge MTC The reasons given for requiring category 9 in the case to which appeal 374 relates read as follows The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge MTC by the defendant Access to full details regarding the quantity of 1800 numbers issued by the defendant the number of minutes trafficked per number by reference to access method and the names of the parties to whom the numbers were allocated would enable the plaintiff to assess the manner in which the MNO origination charge MTC was imposed In addition in terms of assessing the quantum of its alleged loss such information would demonstrate how in a market highly sensitive to increases in price the discriminatory imposition of the MNO origination charge MTC caused the plaintiff to lose customers to operators who were are not charged the MNO origination charge MTC by the defendant In short it will enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination charge MTC to the defendant The plaintiff believes that expert analysis of these figures will establish a direct and conclusive co relation between the discriminatory behaviour of the defendant and the loss suffered by the plaintiff Again the reasons given for the equivalent request in the action to which appeal 375 relates are in identical terms except for the substitution of PAC for MNO origination charge MTC I think it fair to say that the respondent was not initially opposed to the postponement if as promised the relevant information which the respondent sought to obtain from category 9 was in fact furnished with the discovery under category 8 The preparation and delivery of the discovery under category 8 however took quite some time and it was furnished in instalments At a certain stage the respondent on an assessment of the partial discovery made came to the conclusion that the information it sought under category 9 and which it considered necessary for its proofs was not in fact going to be furnished Acrimonious correspondence ensued the upshot of which was that the appellant objected in principle to complying with the request for the discovery of category 9 The respondent therefore decided to re enter the matter before the court A further dispute then broke out in as much as the appellant interpreted the earlier decision and order of the learned High Court judge as a postponement of all consideration of request No 9 whereas the respondent contended that only the decision had been postponed Although the learned judge agreed with the respondent he nevertheless permitted the matter to be argued afresh which it was As already mentioned the learned judge subsequently made the requested order Some days before the final order was made the respondent made the significant concession that it was prepared to limit its request in respect of category 9 to 11 of the 56 telecommunications companies referred to These eleven were subsequently specified I will in due course deal with the grounds of appeal and therefore the specific objections in principle on the part of the appellant to making the discovery ordered But I think it useful to continue first with background material It is the contention of the respondent that merely to receive the invoices referred to in category 8 is not sufficient or at the very least may prove itself not to be sufficient to establish its case against the appellant In order to demonstrate the alleged discrimination it is not sufficient to prove total volumes of minutes trafficked to particular operators as opposed to individual 1800 numbers As pointed out in inter alia the affidavit of Alice Whittaker sworn the 22nd May 2006 total volumes of minutes trafficked to particular operators as opposed to individual 1800 numbers do not provide the plaintiff with the means of relating such increases and decreases to specific call cards that benefited or suffered as a result of the discriminatory imposition of the MAC and the PAC This is because there may be a particular or special reason for an increase which would have no relevance to the alleged discrimination Such relevance in the contention of the respondent can only be established by reference to the individual numbers Furthermore these actions are all about sales of call cards rather than phone call minutes In this connection it is worth quoting paragraph 16 of the same affidavit Consumers access Dome s Telecommunication services by calling the access number on the Dome card then entering their PIN number to verify the level of credit then entering the telephone number they wish to call i e the Dialled Number In this regard I beg to refer to a sample Dome Global Caller Card above which marked with AW5 I have signed my name prior to swearing hereof This sample call card has three different access numbers as described more fully at paragraph 9 depending on the access method used by the customer Based on its own call card sales the plaintiff knows that only a small proportion of customers use the 1800 freephone number from mobile and payphone in order to access the stored telephone credit The loss of 1800 minutes to each of the operators that receive preferential treatment represents only a small proportion of the plaintiff s loss on the sale of its call cards In other words as I understand it the case being made by the appellant is that even though an 1800 freephone number will not normally be accessed from mobile phones or payphones if in fact the charges for such calls are more expensive than those of competitors this is a disincentive to purchasing the card In paragraph 19 of the same affidavit an alternative approach was suggested on behalf of the respondent namely that the appellant would accept as a matter of evidence that every increase in freephone traffic to non Irish carriers in the relevant period relates to call card business At a certain stage the learned trial judge to save time requested letters from each side written to him setting out their respective arguments In the appellant s letter the appellant submitted to the judge that even if the discovery under category 9 might be considered necessary it would still be wholly disproportionate But the letter went on to state that if the judge rejected that submission the appellant would be inclined to adopt the alternative suggestion offered by the respondent as set out above However it is the respondent s case that the appellant attached conditions to the acceptance which were wholly unacceptable What the appellant in this connection said in the letter was the following Accordingly the defendant would be prepared to accept as a matter of evidence for the purposes of the mobile proceedings that during the period running from the 1st January 2001 until 30th October 2001 inclusive all of the increases in freephone traffic the increase being measured compared with the average monthly volume of minutes recorded in the quarter prior to the 1st January 2001 from mobile handsets in Ireland to 1800 numbers terminating outside the State which increases are fully recorded in the documentation already provided to the plaintiff in respect of category 8 may be attributable to use by call card customers of their cards The appellant then adopted a rather different position in relation to the payphone proceedings i e the action to which appeal 375 relates What the appellant said in the letter in that respect was as follows As regards the payphone proceedings the matter is more problematic The defendant does not deny as the plaintiff in effect in footnote 2 to its letter observes that the figures for payphone originating international freephone traffic are included within the figures for fixed line originating international freephone traffic in the document created by the defendant setting out details of the outgoing international freephone traffic which it trafficked in the period August 1999 to April 2005 This document to which the defendant refers in the said footnote was produced by the defendant to assist the plaintiff in analysing the said international freephone traffic Contrary to the allegations made by the plaintiff in its letter of the 8th inst the defendant is satisfied that the information contained in this document is both complete and accurate For the reasons set out in paragraph 10 of the affidavit of John Hall sworn on the 22nd March 2002 on behalf of the defendant the latter was unable to distinguish payphone originating international freephone traffic from fixed line original international freephone traffic prior to 2002 Consequently for the purposes of the payphone proceedings the defendant would be prepared to accept as a matter of evidence that for the period running from the 1st September 2001 which the plaintiff admits in the affidavit sworn by Dara O Mahony on its behalf on the 8th April 2002 that it began applying the PAC to its call cards until the 7th June 2002 when it became possible to identify payphone originating international freephone calls that up to 50 per cent of the increase in the monthly volume of fixed line originating international freephone traffic above that recorded in the previous quarter to wit June to August 2001 may be attributable to use by call card customers of their cards As Ms Whittaker makes clear in her same affidavit it was the view of the respondent that by limiting and re defining the concession the defendant renders it of no assistance to the plaintiff in advancing its cause This is a suitable juncture in which to make the observation that subject to one qualification to which I will refer at no stage in the affidavits or in the letter to the judge or in the submissions written or oral does the appellant make any worthwhile concession to the effect that a trial judge would be entitled to draw inferences of discrimination from the category 8 discovery In fairness of course the appellant has made one significant concession in respect of particular periods to which I will refer in more detail later in the judgment and that is the qualification to which I have referred It is a concession that in respect of different particular periods relating respectively to MAC and PAC distortion in card sales can be attributed to non imposition of the transit charges though the appellant will claim that there was objective justification for it The contention of the appellant is that as of the terminal date in respect of each period the

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  • limited value not only because it provided limited information but also because the information therein did not appear to be accurate consistent or reliable It had been conceded by Mr John McKeon in his affidavit sworn 29th May 2006 that the invoices or settlements provided to international operators i e under Category 8 constituted a highly aggregated invoice and therefore it was clear that they could not provide the information required under Category 9 He submitted that in reality there was no substance or foundation to the central objection raised by Eircom because the court was only concerned with the retrieval of information that had previously been calculated by the computer Without prejudice to this submission Mr McDermott urged the Court to take the view that if what the trial judge ordered was to be seen as an extension of the law then it was justified Discovery was not created by primary legislation but rather was judge made law so that as with any common law principle it was open to the court to extend it so as to reflect changing technology DECISION The relevant portions of Order 31 rule 12 of the Rules of the Superior Courts No 2 Discovery 1999 S I No 233 of 1999 which are of relevance to this dispute read as follows 1 Any party may apply to the Court by way of notice of motion for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his or her possession or power relating to any matter in question therein Every such notice of motion shall specify the precise categories of documents in respect of which discovery is sought and shall be grounded upon the affidavit of the party seeking such an order of discovery which shall a verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs b furnish the reasons why each category of documents is required to be discovered 2 On the hearing of such application the Court may either refuse or adjourn the same if satisfied that such discovery is not necessary or not necessary at that stage of the cause or matter emphasis added 3 An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs I have emphasised the linking in subparagraph 2 of the concept of necessity to the particular stage of the proceedings at which discovery is sought because it is of particular relevance to my decision as detailed hereunder Before proceeding further however it is important to refer to other Rules of the Superior Courts which have a particular relevance in this matter Special rules in relation to competition proceedings were introduced in this jurisdiction by the Rules of the Superior Courts Competition Proceedings S I 130 of 2005 and the same were opened to the Court during the hearing of this appeal In many respects the Competition Rules reflect and acknowledge the complexity of competition proceedings and are clearly designed to simplify to the greatest extent possible the resolution of issues arising in such cases Thus the Competition Rules provide a definition of competition proceedings and rule 4 paragraph 1 requires that competition proceedings and any motions or other applications in competition proceedings shall be heard in the competition list by the judge assigned by the President of the High Court to hear and determine proceedings in the competition list That judge will invariably be a judge with some experience of the arduous demands of competition law The Rules provide for various pre trial procedures which emphasise efficiency and the requirement to keep costs down Thus rule 5 provides A Judge may at any time and from time to time of his own motion and having heard the parties give such directions and make such orders including the fixing of time limits for the conduct of proceedings entered in the Competition List as appears convenient for the determination of the proceedings in a manner which is just expeditious and likely to minimise the costs of those proceedings Rule 4 para 2 provides that either party may prior to the close of pleadings in the case of plenary proceedings or prior to the completion of the filing of affidavits in the case of proceedings to be heard on affidavit bring an application to the judge in charge of the competition list to fix a date for an initial directions hearing in the case At any such initial directions hearing rule 6 provides that the judge may give various directions to facilitate the determination of the proceedings including directions for the defining of issues directions for the delivery of interrogatories or discovery or inspection of documents directions that experts consult with each other for the purpose of identifying the issues in respect of which they intend to give evidence and possibly agreeing on evidence which they intend to give on those issues Rule 6 x also provides for the exchange of documents or information between the parties or for the transmission by the parties to the registrar of documents or information electronically on such terms and subject to such conditions and exceptions as a judge may direct The Rules further provide that the judge may direct that the proceedings be subject to case management fix a date for a case management conference and give any further directions for the completion prior to such conference of such steps in the proceedings as he considers appropriate including the preparation of a case booklet which contains an agreed outline of the case and events and issues that are not in dispute Rule 27 also provides that the parties before trial should serve upon the other party or parties a written statement outlining the essential elements of the evidence of any witness either as to fact or of an expert The Rules under rule 20 para 1 b also impose upon the parties an obligation to file a case summary comprising an agreed outline of the case and sequence of relevant events not in dispute a list of issues which are not in dispute a list of the persons principally involved in the matters or events the subject of the proceedings and where appropriate a glossary of technical terms which are likely to be used in the course of the trial Put shortly the Rules are designed to expedite and facilitate the speedy resolution of competition proceedings By obvious and necessary implication an ancillary purpose must be to minimise costs If these are appropriate control mechanisms for competition proceedings it seems clear to me that the first question to be addressed in this case which concerns a case assigned to the Competition list is whether or not discovery of Category 9 documentation either by the creation of a document or otherwise is in fact necessary and or proportionate bearing in mind in particular that the disputed category 9 material seems now to relate only to the quantification of the plaintiff s damages having regard to the factual concessions made by the defendant to facilitate disposal of the core issue of liability and having regard also to the undoubtedly burdensome nature of the form of discovery sought Of particular relevance to the facts of this case are the observations of Fennelly J in Ryanair p l c v Aer Rianta c p t 2003 4 I R 264 when he stated as follows at 277 The court in exercising the broad discretion conferred upon it by O 31 r 12 2 and 3 must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required It should also consider the necessity for discovery having regard to all the relevant circumstances including the burden scale and cost of the discovery sought The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation It may have regard of course to alternative means of proof which are open to the applicant These may no doubt include the possible service of notices to admit facts or documents But there are two sides to litigation The behaviour of the opposing party is relevant That party may for example have made or may offer to make admissions of facts and thus persuade a court that discovery on some issues is not necessary These comments in relation to necessity and other relevant considerations received further approval from this Court in Framus Ltd Ors v CRH plc Ors 2004 2 I R 20 In the course of his judgment in that case Murray J also stressed that the notion of proportionality must attach to the concept of necessity stating as follows at p 38 It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse As Fennelly J pointed out ie in Ryanair plc v Aer Rianta 2003 4 I R 264 the crucial question is whether discovery is necessary for disposing fairly of the cause or matter I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial It seems to me that these observations apply a fortiori where factual admissions which may permit the resolution of the case in its most significant aspects are made by the party from whom discovery is sought To put it another way the assessment of what is necessary or proportionate must take account of any factual admissions or concessions made by either or both the parties notably where liability is totally in dispute and where that issue can conveniently be first determined as a result of admissions or concessions made Insofar as the judgment of the learned High Court judge is concerned it does not indicate why the concession offered by the defendant was not regarded as sufficient to allow liability in this matter to be determined at least insofar as the mobile telephone proceedings are concerned It will be borne in mind in this regard that the concession offered by the defendant in respect of the period from January to October 2001 concedes that 100 of the increase in freephone traffic invoiced to the international operators is attributable to the imposition of the MAC charge This is as much as the plaintiff could ever establish in evidence be there discovery under Category 9 or not in respect of this period It is true that the situation with regard to payphone usage remains open having regard to the fact that payphone charges are conflated with fixed line charges in the Category 8 discovery and those elements have not yet been segregated from each other However no such difficulty arises in the mobile proceedings and the period of the concession i e ten months strikes me as more than adequate to allow the plaintiff make out its case on liability if it can I am also unhappy that the order in question appears to have been made without any clear indication being given to the judge as to the cost and expense involved in so doing although in the course of the hearing before him and perhaps more particularly in the hearing before this Court the defendant put forward estimates for the huge amount of time effort and cost involved in complying with Category 9 It would be quite wrong in my view not to acknowledge the cost and time effort involved in the gargantuan task which an order under Category 9 would impose on the defendant notably when that task is weighed against the limited fruits which might emerge from compliance confined as those fruits would be to quantum of loss only and then only to a period when Eircom was closing off the problem In this context one must also bear in mind that on the evidence Dome itself placed before the High Court only a small proportion of its customers used the 1800 freephone number from mobile and payphone in order to access stored telephone credit that the vast preponderance of user was on fixed line calling where no charges were imposed Thus while the material sought under Category 9 is undoubtedly relevant can it be described as necessary or can it be so described at this stage in the proceedings It can not always be the case that relevance creates necessity because otherwise there would be no need to have the two separate concepts of relevance on the one hand and necessity on the other Necessity is the true threshold where issues of proportionality must be assessed and clearly the more necessary the document is the more proportionate it will be for the requesting party to obtain discovery It seems to me that the facts and circumstances of the particular case must then also be considered Is it a case which conveniently lends itself to be decided in modules in the interests of efficiency and cost saving Examples of litigation which lend themselves to such division might typically include for example medical negligence cases where liability is hotly contested The resolution first of the liability issue may well dispose of the entire proceedings In such circumstances which also arise here can cumbersome discovery which now relates only to a certain aspect of quantum be regarded as necessary and proportionate at this point It would in my view be wrong to assess issues of necessity and proportionality separately from the liability issue Liability must be determined before any question of damages arises While there has to date been no agreement between the parties thus far as to what constitutes the relevant market for the purpose of these proceedings the liability issue itself appears despite the technical issues relatively straightforward and all the more so having regard to the admitted facts in the mobile proceedings If there is no finding of anti competitive behaviour against Eircom in respect of the admitted conduct that will effectively dispose of the entire case I see no good reason why the plaintiff should not proceed to seek a determination of the liability aspects of those proceedings on foot of the important concession which the defendant has made at the express instigation of Dome itself namely that over a ten month period in 2001 100 of the increase in traffic through the major international operators again as identified by Dome in respect of mobile phone traffic is attributable to the imposition of the MAC on national operators If the plaintiff is successful in establishing a breach of competition law and more particularly an alleged abuse of a dominant position by Eircom then that will be the appropriate time to apply for more wide ranging discovery to enable quantum of damages to be assessed If the plaintiff is unsuccessful the requirement to turn up information about what occurred at the expiration of the arbitrage period when any problem was being progressively closed off will simply not arise Accordingly and making my decision on essentially pragmatic grounds I would defer any decision on discovery of Category 9 documentation herein until the issue of liability in the mobile phone case has been determined In reaching this view I would not wish to be taken as resiling in any way from the commonsense views expressed by McCracken J in Ryanair p l c v Aer Rianta c p t 2003 4 I R 264 to the effect that competition cases generally may have the special feature that anti competitive practices may be kept secret and that any documents relating to anti competitive behaviour are more likely to be in the possession of the party engaging in that behaviour I simply just do not see any particular disequilibrium arising on the facts of this case given that the facts alleged to be anti competitive are known and not disputed at least not in the mobile proceedings over the period of the concession One is of course extremely reluctant to trespass on the discretion of a judge who makes rulings in the course of case management However my decision is in no way critical of anything McKechnie J said or did and is intended solely to facilitate the High Court by reducing the burden on the trial judge when the matter comes to trial I would therefore favour allowing the appeal on the basis that the relief granted by the High Court was in the particular circumstances both unnecessary and disproportionate at the stage of the proceedings at which it was granted In the event that the plaintiff succeeds on liability in the mobile proceedings it should then be at liberty to renew the application for Category 9 discovery in the High Court if same is required for the purpose of assessing damages either in those proceedings or in the payphone proceedings In the circumstances I think it is appropriate to allow the appeal in the payphone proceedings also Having regard to the considerations underpinning this judgment I do not find it necessary at this point to decide whether or nor the granting of discovery in respect of Category 9 involves the creation of a document or whether discovery in the form sought goes beyond what is envisaged or is permissible under Order 31 of the Rules of the Superior Courts Given that the process of inspection appears also to raise huge technical and other problems including not only the retrieval and processing of data but also the policing supervision and editing involved in the exercise I would thus also refrain from making a decision now on whether the offer of inspection by Eircom could provide a viable alternative to the discovery sought THE SUPREME COURT Geoghegan J Fennelly J Kearns J Nos 374 375 of 2006 BETWEEN DOME TELECOM LIMITED PLAINTIFF RESPONDENT AND EIRCOM LIMITED DEFENDANT APPELLANT JUDGMENT delivered the 5th day of December 2007 by Kearns J The plaintiff is an Irish company based in Dublin which carries on the business of supplier of call card and other freephone telecommunications services The plaintiff s business operates in the following manner customers purchase call cards supplied by the plaintiff via retailers A customer uses a call card to call a freephone 1800 number from any telephone including a mobile handset or payphone When the customer calls the plaintiff s freephone number from a mobile handset the customer is connected first to the mobile network operator s network from there to the defendant s network from there to the network of Nevada Tele com Limited of Hogan Place Grand Canal St Dublin 2 a licensed operator pursuant to Section 111 2 of the Postal and Telecommunications Services Act 1983 which provides services to the plaintiff and from there to the plaintiff s network The customer then makes telephone calls using the plaintiff s network The freephone number is assigned to the plaintiff by Nevada from a number range assigned to Nevada by the Director of Telecommunications Regulation the Director When a customer calls the plaintiff s freephone number from one of the defendant s payphones the customer is similarly connected to the defendant s network from there to the Nevada network which provides services to the plaintiff regarding the freephone numbers and from there to the plaintiff s switch The customer then makes telephone calls using the plaintiff s network of switches and connections thus benefiting from the competitive call rates offered by the plaintiff It is not in dispute that from May 2000 to date the defendant has imposed a telecommunications interconnection charge transit charge on certain operators in the State for calls to freephone 1800 numbers originating from both mobile handsets and payphones The imposition of such charges was authorised in 2001 by the Director by Decision D3 01 to compensate the defendant for charges imposed by network operators on the defendant for originating freephone calls the MNO origination charges The transit charge was thereafter imposed by the defendant on Nevada which in turn passed the charge on to the plaintiff The plaintiff has in turn imposed the charge on its own customers by imposing an additional levy on their calls The essence of the plaintiff s claim in two sets of proceedings concerning respectively mobile phones and payphones is that the defendant failed to impose these transit charges evenly simultaneously or fairly on all operators in the State for calls to freephone 1800 numbers originating from mobile phones and payphones In particular Dome contends that for some considerable time following the decision of the Director in March 2001 the transit charges were not imposed at all on international operators then operating in the State who as a result were able to compete in the Irish market to the detriment of Irish call card suppliers given that the latter category were immediately compelled to pay the new charges In particular it is alleged in the statement of claim in the mobile proceedings that from October 2000 to a date unknown in August 2001 the defendant failed to impose the transit charges on international operators to whom it provided access via its subsidiary Eircom UK Limited in London Insofar as payphones are concerned it is alleged that transit charges were imposed on national operators in the State from May 2000 onwards The plaintiff accordingly claims in both proceedings a declaration that the actions of the defendant in imposing a transit charge on certain operators in the State including the plaintiff for calls to freephone numbers originated from either mobile phones or the defendant s payphones insofar as they fail to impose the same interconnection charges on all other operators are a Contrary to sections 4 and or 5 of the Competition Act 1991 now sections 4 and 5 of the Competition Act 2002 b Contrary to Articles 81 and or 82 of the Treaty of Rome c In breach of the terms of the defendant s general telecommunications licence of 1st December 1998 d In breach of the European Communities Interconnection in Telecommunications Regulations 1998 S I No 15 of 1998 e In wrongful interference with the plaintiff s economic interests f In breach of the plaintiff s constitutional rights The plaintiff claims to have sustained a loss of sales and profits as a result of the defendant s allegedly discriminatory behaviour This is said to have occurred in circumstances where competitors of the plaintiff were able to sell call cards in the Irish market at a flat rate per minute without any surcharge whereas the plaintiff was in the case of calls to its network from mobile handsets obliged to pass on a surcharge of 40p per minute on all its customers The plaintiff asserts that it had been generally known in the Irish marketplace that Dome was the lowest cost provider of international calling time anywhere in the world and its call card Century was until the events complained of regarded as the best value for money The plaintiff further contends that it planned to develop its telecommunications business including mobile and residential services under the Century brand but has had to put these plans on hold pending resolution of this dispute and an evaluation of the damage suffered by its brand In a comprehensive defence the defendant denies inter alia that the plaintiff has any contractual relationship with the defendant and denies that the plaintiff is a licensed operator within the Postal and Telecommunications Act 1983 or entitled to be treated as such The nature of the relevant market for competition law purposes is also put fully in issue the defendant asserting that insofar as the plaintiff claims that the relevant market is either the public fixed telephony network and services market in the State the leased lines market in the State the market for payphones in the State or the national market for interconnection in the State that any such contentions are denied The defendant pleads that the relevant market is that catering for telecommunications customers who wish to make telephone calls to freephone numbers whilst in transit or on the move which said market includes users of mobile phones pay phones and calling card products and denies that it is in a dominant position in any such market The defendant further denies that it imposed transit charges in a discriminatory manner or that the matters complained of by the plaintiff constituted an unlawful subsidy to international operators It further denies that was in breach of its Telecommunications License or the relevant regulations or that any action on its part constituted an infringement of Articles 81 or 82 of the Treaty of Rome or amounted to breaches of ss 4 or 5 of the Competition Act 1991 In particular it is denied that the matters complained of amount to the application of dissimilar conditions to equivalent transactions by the defendant or that the matters complained of constitute below cost selling by the defendant and or the imposition of unfair prices or trading conditions by the defendant The defendant also contends that if the matters complained of constitute discrimination by the defendant against the plaintiff the difference in treatment is objectively justified The proceedings were commenced in March 2002 A statement of claim was delivered on 22nd March 2002 and the defence thereto was delivered on 5th April 2002 An amended defence was delivered on 17th June 2005 Following the delivery of the statement of claim and delivery of the defence further particulars were exchanged between the parties On 23rd December 2003 the plaintiff s solicitors wrote to the defendant s solicitors office seeking voluntary discovery of certain categories of documents A lengthy exchange of correspondence followed which ultimately did not lead to any resolution of the issues between the parties as to the parameters of discovery In July 2005 the proceedings came before the judge assigned to deal with the competition list and a motion for discovery was first brought returnable for 19th July 2005 In the context of that application the plaintiff sought discovery of documents under twelve different headings There were numerous references to court thereafter For present purposes it is not necessary to state more than that the present dispute ultimately came to be reduced to a single question namely whether the discovery which the defendant made under Category 8 is sufficient for the purposes of the present litigation or whether for the proper disposal of the proceedings documentation sought by the plaintiff under category 9 is also required The distinction between these two categories will be evident from the correspondence referred to hereunder Detailed submissions were made to McKechnie J in the High Court in November 2005 in both the mobile and payphone proceedings In the aftermath of that hearing the court invited the parties to set out clearly why they required the court s intervention in the process of discovery and in particular the category 9 discovery McKechnie J invited the parties to set out in writing to him the underlying reasons and arguments to justify their respective positions By letter dated 8th May 2006 the solicitors for the plaintiff wrote to the trial judge explaining why Category 9 discovery was necessary over and above any information furnished under Category 8 Before referring to the letter it is necessary to recite precisely what was sought by way of Category 9 discovery which was the following All documents relating to the 1800 numbers issued by the defendant to licensed operators and or international carriers and or other entities from 1 July 2000 to the date hereof to include any and all schedules lists or database setting out the quantity of 1800 numbers issued per month the entity to whom they were issued and the volume of minutes trafficked per month in respect of each 1800 number issued by reference to access method This request was first notified to the defendant by letter dated 7 April 2005 and the reasons given for the request were as follows The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge MTC by the defendant Access to call details regarding the quantity of 1800 numbers issued by the defendant the number of minutes trafficked per number by reference to access method and the names of the parties to whom the numbers were allocated would enable the plaintiff to access the manner in which the MNO origination charge MTC was imposed In terms of assessing the quantum of its alleged loss such information would demonstrate how in a market highly sensitive to increases in price they discriminatory imposition of the MNO origination charge MTC caused the plaintiff to lose customers to operators who were are not charged the MNO originators charge MTC by the defendant In short this category would enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination charge MTC to the defendant The plaintiff believes that expert analysis of these figures will establish a direct and conclusive correlation between the discriminatory behaviour of the defendant the loss suffered by the plaintiff A similar request was made in respect of the payphone proceedings save that the information sought related to the imposition of the PAC Payphone Access Charge by the defendant rather than the MAC MTC mobile access transit charge It is manifestly clear in both cases however that the purpose of this particular request is to enable the plaintiff make out its case on liability namely that such activity occurred and that it was anti competitive and further to quantify its claim for damages to the greatest degree possible In his letter to the High Court judge dated 8th May 2006 the plaintiff s solicitor stated Simply put the explanation of the reasons for seeking this Category 9 which explanation was given to the court on 1 and 2 November 2005 was that the plaintiff believes that its competitor call card operators on whom the defendant did not levy the two charges at issue experienced a huge growth in volumes of minutes over the period of the discriminatory charging This would be evidenced if the plaintiff can identify the volumes of minutes to each 1800 number used as a method of access on those competing call cards Our counsel explained to the court that this evidence of volumes of minutes per 1800 number would not only show the level of discriminatory charging but would greatly inform any analysis of the plaintiff s losses as a result of the defendant s discrimination which the plaintiff claims is unlawful on a number of grounds including breach of competition law The plaintiff included Category 9 as an additional category of discovery to Category 8 in which the plaintiff sought the invoices because the plaintiff did not believe that the invoices would show the minutes per 1800 number as this would not be the standard documentation in the industry The breakdown of minutes per number is the back up information from which the invoice is generated However the defendant is obviously in the best position to know what information is contained on its invoices and the plaintiff believes that the court relied on the defendant s submission that the volumes of minutes per 1800 number would be included in Category 8 The discovery made to date by the defendant supports this reasoning and bears out the plaintiff s belief that its competitors received a huge growth in minutes when the discrimination by the defendant occurred which grew to a high point and then dropped away almost completely in some cases when the defendant took steps to address the discrimination as a result of the plaintiff instituting the two actions that are before the Court The court s attention is drawn to the document included at Appendix 2 1 which was disclosed by the defendant under Category 8 discovery In particular we refer to the figures for USA Worldcom MCI an international carrier which supported a number of the plaintiff s competitor call cards At the time that the MAC MTC was imposed on licensed operators in Ireland only it appears that the volume of minutes trafficked by the defendant to Worldcom MCI from mobile telephones increased dramatically from 74 173 minutes in December 2000 to 173 014 minutes in January 2001 to 521 291 minutes in February 2001 to a high of 1 245 256 minutes in July 2001 The volume of minutes trafficked from mobile telephones to Worldcom MCI decreased suddenly after July 2001 The plaintiff first wrote to the defendant complaining about the discriminatory charging on 13 June 2001 This document and the further invoices and settlements provided under Category 8 give some details though not complete or accurate of the volume of minutes per telecommunications operator rather than per 1800 number The plaintiff is aware in some instances of which telecommunications operators were supporting its competitor call card operators so that the limited information given to date is of some utility however the plaintiff nonetheless requires the volumes of minutes per 1800 number for the reasons above Counsel for the defendant has already confirmed that the requisite information per 1800 number is contained within call data records held by the defendant The court s attention is drawn to sample documents attached at Appendix 2 2 which have been discovered by the defendant and which appear to show that the defendant is capable of producing this data per 1800 number for its own purposes The plaintiff notes that the discovery of Categories 2 3 in the Mobile Proceedings and 3 4 in the Payphone Proceedings was originally made with redactions that the defendant confirmed were erroneous redactions before the court on 21 March 2006 Those redactions mainly although not exclusively excised all information contained in memos and other internal defendant documents regarding volumes of minutes per telephone number The plaintiff has now received the unredacted versions of those Categories The plaintiff believes that the court recognised the Category 9 in particular the latter part marked here in bold is of most significance to the plaintiff and should be allowed for the reasons set out on 1 and 2 November and in the discovery request itself The defendant indicated to the court that the invoices settlements would contain information on the volumes of minutes The plaintiff believes that it is on this basis that the court deemed it unnecessary to make any order in relation to Category 9 at that stage The court stated that The true benefit sought by the inclusion of this category is to ascertain the volume of minutes trafficked per month I am informed on behalf of the defendant that the invoices referred to in Category No 8 should include this information Accordingly on that basis 1 do not propose to allow this category of documents for the moment Nonetheless the court recognised the possibility that the invoices settlements would not include the requisite information and for this reason the court simply adjourned Category 9 to 31 January 2006 the date by which Category 8 was originally due to the discovered Subsequently the defendant was granted extensions to this period such that discovery of Category 8 was only completed by 25 April 2006 The plaintiff s understanding is that the court left the door open for the plaintiff to ask for a formal order in relation to Category

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  • Hickey told him It is too late the sale is off That was the end of the conversation On the same day Mr Gavin wrote the following to Mr Hickey Dear Mr Hickey Our telephone conversation refers It is in order to release monies today you may send on the documents to me With regard to the right of way the map has to be agreed between the parties When same has been agreed I should be grateful if you would have the grant of right of way executed Yours sincerely Colm Gavin That elicited a reply from John Shiel solicitors in the following terms Dear Sirs We refer to the above mentioned matter and your facsimiles of the 8th July and 11th July As previously advised the contract for sale was rescinded and the contract deposit forfeited Accordingly this matter is at an end Any monies forwarded to us will be immediately returned to you Yours faithfully John Shiel solicitors There was some subsequent correspondence which I do not find it necessary to set out I wish to refer briefly now to the evidence of Mr Hickey In relation to the actual issues which are relevant to this case none of Mr Hickey s evidence is material except in so far as it relates to what was to happen on the 11th July 2005 The arrangements for that date of course were made between Mr Fitzpatrick and the purchaser It is clear beyond doubt from the evidence of those two witnesses that what was contemplated was a closing of the sale on the 11th July Mr Hickey on the other hand in his evidence seemed to suggest that all that was intended to be involved was some kind of round table meeting to see whether there was any basis on which a sale could go through notwithstanding the rescission In giving this evidence Mr Hickey was either mistaken or disingenuous Mr Hickey was in Kerry on his holidays at the time that the arrangements were made Mr Hickey explained that the 11th July had been chosen because he would have been coming up to Dublin on that date with a child who had an appointment in Crumlin hospital That would have been in the morning and therefore any matters relating to the sale would have had to be dealt with in the afternoon It appears from Mr Hickey s evidence that after Mr Gavin had had the conversation with Mr Fowler on the 11th July Mr Fowler telephoned Mr Hickey Mr Hickey then contacted Mr Gavin on his mobile and on essential matters his evidence is not significantly different from that of Mr Gavin Despite the arrangements already made according to Mr Gavin with Mr Fowler whereby a closing would take place on the 12th July as far as Mr Hickey was concerned there was to be no closing and his client was standing by the rescission Curiously enough this volte face seemed to be largely based on Mr Gavin not being in Dublin in circumstances where Mr Hickey alleged that the so called meeting at 2 00 p m was to be held in Dublin The telephone conversation took place according to the evidence of Mr Hickey which was not disputed by Mr Gavin about 12 30 or 12 45 It is clear that Mr Hickey in no uncertain terms informed Mr Gavin that any question of reviving the sale was off Quite apart from the evidence of Mr Gavin that if necessary the full interest would have been paid on closing the issue of interest never really arose because it could not have come into play until the intended closing Significantly although Mr Hickey both in direct examination and cross examination was trying to suggest that all that was arranged for the 11th July was a mere meeting he nevertheless was not able to give an accurate account of what Mr Fowler actually told him following Mr Fowler s conversation with Mr Gavin on the 11th When it was put to him that Mr Fowler must have told him he had had a conversation with Mr Gavin concerning a proposed closing for the 11th he said I don t know whether he said it was to do with the proposed closing or anything Furthermore Mr Hickey admitted that Mr Fowler in that conversation did say to him that he had told Mr Gavin he was going to be in court all day and could not deal with the matter on the 11th The obvious point was then put to Mr Hickey in cross examination as to how he could expect Mr Gavin to be in Dublin on the 11th in these circumstances Having regard in particular to the inconsistencies and hesitations in Mr Hickey s evidence the only credible account of what transpired in the discussion on the 11th July between Mr Gavin and Mr Fowler is that of Mr Gavin At any rate Mr Hickey s evidence in this respect would be mere hearsay and significantly as I have already mentioned Mr Fowler despite being in court was not called as a witness I have carefully considered the views of the learned trial judge but I cannot agree that the evidence is open to any conclusion other than that on the 11th July 2005 as extended to the 12th July 2005 the purchaser was ready and willing to close the sale in the manner and at the time stipulated There is no doubt that the purchaser was hoping to escape interest but there is nothing in the evidence to suggest that if the vendor insisted on full interest the purchaser would not have gone ahead with the purchase indeed quite the contrary The evidence also clearly establishes that the purchaser understood that it was the original contract as drawn up which had to be performed and that she was willing to do so notwithstanding some loose ends in relation to the side issues There remains however the important question of law is the court entitled to grant an order for specific performance based on estoppel notwithstanding that the contract had been rescinded The following clearly emerges from the evidence 1 There was a promise that the sale would be closed on Monday 11th July if the completion was done strictly in accordance with the original contract entered into at the auction 2 The arrangements for the 11th July were by agreement postponed to Tuesday 12th July 3 On the 11th July and after that agreed postponement the promise was unequivocally reneged upon by Mr Hickey on behalf of the vendor and thereafter the vendor insisted on the original rescission I should have mentioned of course that these new arrangements for the 11th July subsequently postponed to the 12th July were all without prejudice to that rescission in the event of the sale not being in fact closed by default of the purchaser It is I think common case that the purchaser if entitled to specific performance at all can only be entitled to it by virtue of an estoppel arising from the promise made by the vendor and communicated by Mr Fitzpatrick as slightly modified in terms of date by Mr Fowler of the solicitors for the vendor with some consequent detriment Was there such an estoppel I am quite satisfied that there was There appears to have been a great deal of argument and submission in the High Court to the effect that counsel for the purchaser had not made it clear whether at the end of the day he was relying on an alleged estoppel by representation or an alleged promissory or equitable estoppel Even if there was some validity in that criticism it seems to me that it is irrelevant The two forms of estoppel can frequently overlap that is to say the common law estoppel by representation on the one hand and an equitable estoppel arising out of a promise on the other It is clear from some of the modern English case law presented to the court and which I accept that estoppel by representation need not necessarily be confined to a representation that a particular fact is true It can be what has been described as an estoppel by convention that is to say the parties agree between themselves artificially to act as though a particular fact was true Put simply in this case there was a clear promise by the vendor to permit completion of the original contract but without prejudice to the original rescission if the purchaser defaulted If the purchaser could demonstrate that she suffered detriment as a consequence she could in equity bind the vendor to that promise The transfer of the monies and consequent liability for interest to the bank constituted such detriment However the other form of estoppel to which I referred would also have been operative in this case and would have had the same effect That can be expressed as being an agreed understanding that provided the closing took place in accordance with the conditions as stipulated as to date and time the contract would be taken as being alive and not rescinded I do not think it matters which of these routes one follows The trial judge herself at one point during the hearing suggested that the true nature of the representation which might give rise to the estoppel could be regarded as being that the agreement would be treated as not rescinded A major argument on behalf of the vendor which featured particularly in the High Court was based on the old adage that estoppel was a shield and not a sword Again some of the modern English case law placed before this court convincingly demonstrates that while there may be a technical truth in that adage it is largely irrelevant as far as having any operative effect It certainly does not mean any longer if it ever did mean it that estoppel can only be a matter of defence and can never ground a cause of action Estoppel is regularly raised as a matter of reply to a defence Thus in the example of this particular case in so far as the vendor purports to set up the rescission as a defence to the counterclaim for specific performance the reply to that defence on the part of the purchaser is that in all the circumstances the vendor is estopped or precluded from asserting the rescission For all practical purposes therefore the counterclaim is grounded on estoppel In expressing what I believe to be the relevant law of estoppel for the purposes of this case I am placing considerable reliance on the judgment of Robert Goff J in the English High Court in the case of Amalgamated Property Company v Texas Bank 1982 Q B 84 and the judgments in the Court of Appeal in the same case with particular reference to the judgment of Brandon LJ He explained what was meant by the expression estoppel by convention The case related to a bank guarantee given by a company the validity of which was being disputed by the liquidator of that company A question arose as to whether even if the guarantee was not valid an estoppel had arisen by virtue of the conduct of the company which precluded denial of the guarantee Brandon L J though forming the view that the guarantee was in fact effective went on to consider the estoppel question in the event that he was wrong Two main arguments against the existence of the estoppel had been put forward in the High Court and the Court of Appeal The first was that since the bank held its mistaken belief as a result of its own error alone and that the company had at most innocently acquiesced in that belief which it also held there was no representation which could found an estoppel The second argument was that the bank was seeking to use the estoppel not as a shield but as a sword and that that was not permitted by the law of estoppel Brandon L J rejected both arguments He expressed the view that the particular estoppel relied on was of the kind described in Spencer Bower and Turner Estoppel by Representation 3rd ed 1977 at pp 157 160 as estoppel by convention He cited the relevant passage of that work as follows This kind of estoppel is founded not on a representation of fact made by a representor and believed by a representee but on an agreed statement of facts the truth of which has been assumed by the convention of the parties as the basis of a transaction into which they are about to enter When the parties have acted in their transaction upon the agreed assumption that a given state of facts has to be accepted between them as true then as regards that transaction each will be estopped as against the other from questioning the truth of the statement of facts so assumed In this particular case both parties knew that the contract was lawfully rescinded and both parties accepted that that was to remain the position subject only to the proviso that both would act on the artificial assumption that the contract was still alive and enforceable if the sale was completed on a particular date and time Brandon L J then dealt with the second argument which as I have already pointed out was an argument which featured heavily in this case and particularly in the High Court Mr Barron counsel for the plaintiff argued strongly that estoppel here was being used as a sword and not a shield But this is what Brandon L J had to say in relation to this alleged principle at p 131 of the report In my view much of the language used in connection with these concepts is no more than a matter of semantics Let me consider the present case suppose that the bank had brought an action against the plaintiffs before they went into liquidation to recover monies owed by A N P P to Portsoken In the statement of claim in such an action the bank would have pleaded the contract of loan incorporating the guarantee and averred that on the true construction of the guarantee the plaintiffs were bound to discharge the debt owed by A N P P to Portsoken By their defence the plaintiffs would have pleaded that on the true construction of the guarantee the plaintiffs were only bound to discharge debts owed by A N P P to the bank and not debts owed by A N P P to Portsoken Then in their reply the bank would have pleaded that by reason of an estoppel arising from the matters discussed above the plaintiffs were precluded from questioning the interpretation of the guarantee which both parties had for the purpose of the transaction between them assumed to be true In this way the bank while still in form using the estoppel as a shield would in substance be founding a cause of action on it This illustrates what I would regard as the true proposition of law that while a party cannot in terms found a cause of action on an estoppel he may as a result of being able to rely on an estoppel succeed on a cause of action without being able to rely on that estoppel he would necessarily have failed That in my view is in substance the situation of the bank in the present case As I have illustrated earlier in this judgment that is exactly the position which pertains in this case The judgment of Robert Goff J and the judgments of the other two members of the Court of Appeal Lord Denning and Eveleigh L J were in similar vein and I do not find it necessary to expand further There is no difference between Irish and English law on estoppel There is of course Irish case law on the subject but I think that the principles enunciated in that English case of Amalgamated Property Company v Texas Bank which is included in the book of authorities put before this court are particularly relevant to the circumstances of this case In short I am satisfied that the vendor was bound by the promise made to permit the sale to be closed in accordance with the original contract on the 11th July and equally bound by the agreed extension of time to the 12th July This obligation does not arise on foot of a new contract but rather on the principle of estoppel which can be applied to the facts of this case in different ways but in my view the simplest approach is to hold that the vendor was precluded from asserting the rescission as against the purchaser if the purchaser was ready and willing to perform the original contract on the date agreed That promise was reneged upon in advance of the agreed closing time Having regard to the detriment suffered by the purchaser to which I have referred the vendor is estopped from raising the rescission by way of defence to the counterclaim for specific performance I would therefore allow the appeal and would dismiss the vendor s action I would grant the relief sought by way of specific performance in the purchaser s counterclaim The unfortunate problems which arose in connection with the completion of this sale were contributed to by negligent behaviour on the part of the purchaser and indeed at one point a certain element of male fides in that there was more or less an admission that an assertion on behalf of the purchaser that a particular clause in the contract was void was made purely as a tactic Again put simply there was fault on both sides I would therefore disallow any claim for either interest or damages by either of the parties against the other in respect of the period commencing on the 12th July 2005 and terminating on whatever reasonable date may now be fixed for completion pursuant to the specific performance order The purchaser of course must pay full contractual interest payable on the contract up to the 11th July 2005 inclusive THE SUPREME COURT Record No 70 07 Geoghegan J Kearns J Finnegan J BETWEEN ANNE B COURTNEY PLAINTIFF RESPONDENT AND THERESE McCARTHY DEFENDANT APPELLANT JUDGMENT of Mr Justice Geoghegan delivered the 4th day of December 2007 Although this litigation on its face relates simply to a contract for the sale of land unusual issues of both fact and law arose The plaintiff respondent was the vendor and the defendant appellant was the purchaser For convenience I will refer to them as the vendor and the purchaser respectively The vendor s proceedings were with a view to establishing that she had lawfully rescinded the agreement The appellant in her defence denied rescission and sought specific performance In reality however the denial was artificial as undoubtedly the agreement had become rescinded at the suit of the vendor but the purchaser s claim for specific performance was based on an alleged estoppel which allegedly arose from a set of circumstances which took place after the date of the purported rescission The learned trial judge in the High Court granted the vendor her relief sought and dismissed the purchaser s counterclaim The purchaser has appealed that decision The sale related to lands with a development potential situate at Rocky Road and Ballybeg Road Ennis in County Clare The purchaser s father owned adjacent property and was a developer of some substance The sale had been a sale by public auction The signed memorandum incorporated the then standard Law Society contract with some special conditions included in it Some matters relating to planning and development and some matters relating to access which were partly covered by the special conditions were of considerable interest to the purchaser and although she signed the contract as it stood she attempted afterwards with the help of her solicitor to have certain aspects of these matters agreed For reasons which I will explain I do not find it necessary to give details They are at any rate more fully dealt with in the judgment of Finnegan J The agreed closing date was the 8th April 2005 and it is pleaded in the statement of claim that pursuant to general condition 40 of the contract by a notice dated the 22nd April 2005 twenty eight days were given for completion and that period elapsed without the sale being closed The statement of claim goes on to plead that the vendor thereupon forfeited the purchaser s deposit on the 30th May 2005 and effectively rescinded the agreement There were then further attempts made at the suit of the purchaser but partly also with the connivance of the vendor to revive the agreement on a without prejudice basis and with some side agreements about the matters of special concern to the purchaser It seems absolutely clear that the rescission by the vendor was lawful and it seems equally clear that until the events which I am about to describe and which form the factual background of these proceedings took place all other attempts to revive the agreement on a without prejudice basis or otherwise had become redundant I do not therefore find it necessary to elaborate further on them Events took a sudden turn however on the 4th July 2005 On that date the auctioneer Mr Fitzpatrick received a telephone call from the daughter of the vendor The daughter is the same name as the mother i e Anne Courtney It appears that the vendor is frail and elderly and everything to do with the sale was being managed on her behalf by her said daughter who in turn was married to her solicitor Mr Michael Hickey Mr Fitzpatrick in evidence gave an account of this call from contemporaneous notes which he took According to the transcript Mr Fitzpatrick referring to these notes said the following She prefaced it by saying that her mother was somewhat frustrated by the whole affair and the effect and was concerned about the effect it was having on her mother s health That was the general background And she said in an effort to bring the matter to conclusion she asked me to contact Therese McCarthy with a view to closing the sale on Monday 11th July She specifically said to me she didn t want to prejudice what was going on between the respective solicitors and she didn t want any correspondence she didn t want me to enter into any correspondence in the matter Mr Fitzpatrick then confirmed that he was to contact the purchaser His instructions from Ms Courtney were to ask or to make arrangements to contact her solicitor so as to close the sale at 2 00 p m on Monday 11th July at the office of John Shiel and Company They were the solicitors for the vendor of which Mr Michael Hickey was partner Mr Fitzpatrick succeeded in making contact virtually immediately with the vendor and he told her of the request and although she did not commit herself at that stage Mr Fitzpatrick was under the impression that she was happy to bring matters to a conclusion The evidence of Mr Fitzpatrick makes it clear also that the purchaser was made to understand that what was to be completed was the original contract unaltered but that any such revised arrangements were to be without prejudice to the previous rescission Under cross examination Mr Fitzpatrick further confirmed that while he did not foresee any practical difficulty in relation to the side matters originally concerning the purchaser the business for the 11th July would be the completion of the one and only contract he knew about that is to say the contract made at the auction He was also questioned on the matter of interest There is no doubt that on behalf of his client the purchaser her solicitor Mr Gavin of Galway did his best to negotiate his client s way out of paying interest One of the problems was that the bank loan for which she had sought sanction would not have covered a liability for interest which was in the event quite considerable having regard to the delay in closing As far as Mr Fitzpatrick was concerned he made it clear that there was no discussion on interest either way There was a clause in the contract providing for interest and that was the end of the matter In upholding the rescission and refusing specific performance the learned High Court judge attached significance to the interest question Having regard in particular to the evidence of Mr Gavin to which I will be referring and at any rate having regard to a premature reneging on the promise I am of opinion that she was not correct in so doing It is clear beyond doubt in my view that even if there had been no give whatsoever on the part of the vendor in relation to interest interest in accordance with the contract would in fact have been paid had the closing originally suggested for the 11th July taken place Interest was never a matter which concerned Mr Fitzpatrick because of course it could only arise in the event of delay The following dialogue however between Mr Fitzpatrick and counsel for the purchaser took place towards the end of his cross examination Q Was it your understanding that if this went ahead on the 11th that was a matter to be dealt with by Mr Fowler A Yes at closing yes Q With Mr Fowler A Yes Sorry I should say that when Anne Courtney rang me first on the 4th I was aware that she was on a family holiday in Kerry and that Michael Hickey was with her I specifically asked who would deal with the closing interjection Q On the 11th A In the office of John Shiel yes I specifically interjection Q Who was going to deal with her and you were told Mr Fowler interjection A David Fowler that s according to my notes Q Did you tell Ms McCarthy that s going to be dealt with by Mr Fowler A I did specifically interjection Q You told her that A Because I knew the first thing she would have to do would be get in touch with Colm Gavin s office in Galway Q Her own solicitor A Yes Q But mentioned it would be Mr Fowler dealing with it A Absolutely I did Those arrangements as described so clearly by Mr Fitzpatrick correspond with the evidence of the purchaser and correspond with the evidence of Mr Gavin as to his instructions More importantly it is entirely borne out by the evidence of Mr Gavin as to his subsequent conversations with Mr Fowler a matter which I will be dealing with in some detail later on in this judgment Having regard to the comprehensive review of the evidence given by Finnegan J in his judgment and for which I am grateful I intend to confine myself to the aspects of that evidence which are most relevant to this appeal I think it of some importance however to list the witnesses who did in fact give evidence if only for the purpose of highlighting a major omission The witnesses were Mr Michael Hickey solicitor for the vendor Ms Anne Courtney junior daughter of the vendor Mr Michael Fitzpatrick the auctioneer Ms Therese McCarthy the purchaser Mrs Anne Courtney the vendor Mr Michael Earley the relevant bank manager Mr Colm Gavin solicitor for the purchaser When I describe what happened on the 11th July 2005 it will emerge that Mr David Fowler a partner of Mr Hickey was a key figure Yet although it appears from the transcript that he was present in court he was not called as a witness I turn now to the key evidence of Mr Gavin Mr Gavin explained that he received the instructions from his client the purchaser relating to the offer conveyed to her by Mr Fitzpatrick in early July 2005 He had been out of the office until Thursday 7th July and therefore received them on that date Early the following morning he contacted the office of the vendor s solicitors which was a Dublin firm He was told that Mr Hickey was on holidays and he then asked for Mr Fowler but he was told that Mr Fowler would not be there that day He told the telephonist that he would ring back on the Monday but that the matter was extremely urgent When asked what did he understand was going to happen on Monday 11th July he said that he understood that the sale was to be completed These were the instructions given to him by the purchaser He interpreted his instructions as meaning that the sale was to be completed in accordance with the terms of the original contract That of course was a correct interpretation if Mr Fitzpatrick s evidence was to be accepted and there was no reason to dispute it When asked about the side problems such as access on to the lands etc he answered as follows Well my understanding with regard to it the site seemed to be fraught with problems as far as I could see The original contract was a little loose with regard to how the access and things were to be But whatever I was being offered on the day on Monday I would have to accept That was as far as I was and that is what I informed my client Whatever we were getting we had to take that was it He confirmed that those were in fact his instructions He was then asked about interest Having explained what often happened as between solicitors in relation to interest and how interest was often wholly or partly waived matters which I can safely skip over because Mr Gavin fully accepted that the full contractual interest had to be paid if necessary and his evidence was that if his client on the day could not pay it he would have had no trouble in obtaining it from the Allied Irish Bank He would have debited his own office account with the amount of the interest and would have paid it over to the vendor His evidence was that he was absolutely satisfied that if it came to the worst he would be able to recover the interest from his client s father the developer Mr McCarthy He added I know them well enough trust them enough for that There appears never to have been any dispute as to how interest was to be calculated which might have been a different matter The problem was a financial one and the purchaser was hoping to escape interest or at least escape part of it But I think it is perfectly clear that she was well aware that under the contract the liability to pay interest existed and she was equally well aware that what had to be performed was the contract as originally entered into As far as the side issues were concerned the evidence would seem to clearly establish that for the purpose of any closing that might occur on the 11th July they were not regarded as part of the contract except in so far as there were special conditions relating to them Some of the obligations in the special conditions were at any rate post completion obligations The narrative as to what exactly happened as and from Monday 11th July 2005 is crucial to the outcome of the case I will now explain it in detail I will do so primarily by reference to the evidence of Mr Gavin and I will refer briefly to any relevant conflicting evidence from Mr Hickey First of all I should mention that there was evidence from Mr Gavin that he sent a fax to the firm of John Shiel solicitors on Friday 7th July very shortly after he had telephoned the office It would therefore have been some time between 9 00 o clock and 10 30 on the Friday morning The fax read as follows Dear Mr Fowler I rang you on my return from a few days leave this morning but unfortunately you were not available My client has instructed us that apparently this sale is now back on track and is to complete immediately To this end I have arranged with AIB to draw down the monies on Monday morning and it can be forwarded to you by draft of sic by electronic transfer You might ring me in order to bring this protracted matter to a conclusion Yours sincerely Colm Gavin There was enclosed with a separate fax of the same date from Mr Gavin some maps relating to the side issues The hope was expressed that there would be agreement in relation to these matters but it was made clear that it would not hold up the closing of the sale That fax was sent also directly to Mr Fowler Mr Gavin then described what happened on the Monday morning i e Monday 11th July He rang the office of the solicitors for the vendor and asked for Mr Hickey but he was told that Mr Hickey was on holidays He then asked for Mr Fowler and he was told that Mr Fowler was in court and would be there all day Mr Gavin then explained to the receptionist the urgency of the matter as he had been told that there was a 2 00 o clock deadline and that he was arranging for monies to be put through to the account of the solicitors for the vendor and he asked the receptionist could she arrange that Mr Fowler would telephone him That phone call from Mr Gavin was at approximately 9 00 o clock in the morning Mr Gavin then went on to explain how he had arranged the monies with the bank and that it would be essential that they would be available by 2 00 o clock Mr Gavin had already approved the draft deed at an earlier stage All the usual documentation relating to Family Home Protection etc were in order It had been stipulated to the purchaser that the sale was to be completed in Dublin in the offices of John Shiel It is not entirely clear from the evidence whether if everything had moved smoothly Mr Gavin would personally have attended in Dublin at the firm of John Shiel though the more probable inference is that he would have done so At any rate he explained that any problem about that could be got over in one of two ways Either he could have been at the other end of a telephone line which is very common nowadays or his sister who is a Dublin solicitor could have attended on his behalf something she had done on behalf of his firm before At about 11 30 on the morning of the 11th July Mr Gavin received a telephone call from Mr Fowler He explained to Mr Fowler the urgency of the matter that he was putting the monies through anyway but Mr Fowler told him that he was caught in court and that he could not deal with the matter at that time but that he could complete it the following day Mr Gavin agreed to this suggestion as he had no problem with it As far as Mr Gavin was concerned there was simply an extension and nothing more until the following day He so informed his client He did not then travel to Dublin Despite the postponement Mr Gavin made it clear that he was still putting the money through At that stage as far as Mr Gavin was concerned

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  • sewerage and he informed her that that as far as he was concerned they were agreed in principle there was not a problem with them provided the mapping was agreed in both places and he did not expect a problem He had discussed these matters with Mr Hickey on an ongoing basis In cross examination he agreed that the wayleaves were not a sticking point between the parties He did not know what was going on in relation to interest and it was not raised with him It was an issue which was bound to raise its head many months later He was aware that Mr Hickey was on holidays and he asked Ms Courtney who would deal with the closing and was told that Mr Fowler would do so He told the purchaser that Mr Fowler would be dealing with the closing iv Ms McCarthy The purchaser gave evidence She is a management consultant Her father is a building contractor and property developer and own lands adjoining the lands agreed to be sold She was buying the property on her own behalf and not on behalf of her father At the time she was working in Clare in premises called The Kings five bars and a restaurant owned by her father After the contract had been terminated she was in constant touch with Mr Fitzpatrick On 4th July 2005 Mr Fitzpatrick told her the deal is back on again and that it was to close on 11th July at 2 p m as per the original contract no conditions The wayleaves and open space were not a sticking point After the conversation with Mr Fitzpatrick she spoke with her father who in turn spoke to Mr Hickey and she understood that no interest would be payable If interest was payable it would have been paid She would have asked her father to help She contacted Mr Gavin on 5th July and instructed him to work towards a closing She contacted the bank and arranged the balance of the purchase money It was quite clear in her discussion with Mr Fitzpatrick on 4th July that what was to take place on 11th July was a closing On 11th July Mr Gavin told her of his conversation with Mr Fowler and of his conversation with Mr Hickey So far as she was concerned there were no outstanding issues on 11th July While it was her understanding that no interest would be payable if it was it would be paid In cross examination the witness agreed that the vendor was insisting on the contract but being co operative on the matters arising under special conditions 11 and 12 However the arrangements for the 4th July were on the terms of the contract With regard to interest on 4th July Mr Fitzpatrick told her that completion was as per the contract and from this she understood that what was payable was 1 800 000 She could not write to clarify because of the terms stipulated no correspondence This was also her understanding of conversations which she had with Mr Fitzpatrick after 4th July Mr Fitzpatrick did tell her that the completion had to be in Dublin Issues surrounding special condition 12 would not have delayed the completion v Mrs Anne Courtney the vendor Her evidence essentially was that she did not get personally involved in the transaction but left everything to her solicitor Mr Hickey On 11th July she told Mr Hickey to do whatever he thought fit She believed that the purchaser was to attend the closing and the reason the sale did not complete was that the purchaser did not turn up on time vi Michael Early The witness is the manager of the AIB Bank Bank Place Ennis Co Clare The balance of the purchase money was transferred to the account of John Shields and Company the vendor s solicitor at 1 12 p m on 11th July The transaction was instantaneous in that funds leave the account of the transferor and are posted to the accountant of the transferee at the same time vii Mr Gavin Mr Gavin is a solicitor and acted for the purchaser He was away from his office and returned on 7th July After 9 a m on 8th July he telephoned the vendor s solicitors and asked for Mr Hickey to be told that he was on holidays He then asked for Mr Fowler and was told that he would not be there that day He said he would ring back on the Monday but that the matter was extremely urgent His understanding at that time was that the sale was to be completed on 11th July and in accordance with the terms of the original contact With regard to special condition 11 he would accept whatever access was being offered With regard to interest his client had told him that no interest was payable He was hoping to speak to Mr Fowler regarding interest He felt interest would probably be payable and he would have advised his client to pay it On Monday 11th July first thing he again telephoned the vendor s solicitors He asked for Mr Hickey and was told that he was on holidays He asked for Mr Fowler and was told that he was in court and would be there all day He explained the urgency to the receptionist as he had been told that there was a 2 o clock deadline that he was arranging for monies to be put through and he asked her to have Mr Fowler ring him This was shortly after 9 o clock He arranged with the bank for the monies to be transferred As far as he was concerned there was no difficulty about deeds or other documents Normally such transactions are closed by post At 11 30 a m he received a phone call from Mr Fowler and he told him that he was putting the monies through Mr Fowler told him that he was caught in court and could not complete at that time but that he would do it the following day and the witness agreed with this He did not travel to Dublin on 11th July because normally he would complete such a sale by post If a face to face closing was required he would either have travelled himself or someone from his office would have travelled but this was not done because there was nobody available in the vendor s solicitors office to confirm what was to happen He could have had his sister who is a solicitor in Dublin complete on his behalf as she had done in previous cases At about 12 30 p m he received a telephone call from Mr Hickey who asked him why he was not in the office to complete the transaction He replied that this was the first time he understood that it was to be a face to face completion but that he had been trying to get through to the vendor s solicitors and could not communicate with anybody Mr Hickey told him that it was too late as he wanted the money to go back with his mother in law to Kerry Mr Gavin told him that he was quite happy to release the money Mr Hickey replied that it was too late and that the sale was off The witness had been in practice as a solicitor for some 38 years If the client had not got the interest he would have arranged it with AIB his own bank and debited his office account with the amount of the same and paid it over He would have got it back from the purchaser s father whom he knew and trusted He would have asked his own bank to do an immediate credit transfer from his office account Had the meeting taken place at 2 p m on 11th July the transaction would have completed In cross examination the witness said that he would not have made any issue about special condition 12 of the contract but would have been delighted to complete With regard to the right of way all he was entitled to was what was clearly set out in the contract and that is what he expected to get on 11th July He agreed that in earlier correspondence he had disputed the vendor s entitlement to interest His instructions from his client were that the matter was to be completed by 2 o clock on 11th July In practice interest is regularly sought and not paid or the sale is closed without prejudice to interest being charged A lot of solicitors never charge interest In this case if it was sought it would have been paid and he had advised his client that it would have to be paid He had been unable to speak with either Mr Hickey or Mr Fowler concerning interest The witness was unclear as to whether his client had told him that the sale was to be closed in Dublin He had failed to communicate with either Mr Hickey or Mr Fowler and if they had told him that he would have to be there at 2 o clock he would have been there to complete He received a telephone call from the purchaser while in England concerning the appointment to complete on 11th July The position then bore very little relationship to what had gone before As of 2nd June there were matters outstanding but they were not outstanding as at the 7th July As a result of his conversation with Mr Fowler on 11th July he understood that time had been extended until the following day to deal with the matter He may well have told the purchaser that he did not need her at the closing and he never brought a client to a closing The availability of the monies was all that mattered He did not need his client at the closing as there were no issues or problems and he had instructions to complete on terms of the original contract He had made no arrangements on the morning of 11th July to travel to Dublin but could have been in Dublin or could have had some one deal with the matter on his behalf and that was not a problem The reason he did not make arrangements to be in Dublin at 2 o clock was because of the telephone conversations on 7th July and the 11th July with the office of the vendor s solicitor when neither Mr Hickey nor Mr Fowler were available He could not get any communication from anybody who was dealing with the transaction On 11th July he did not get an opportunity to say that he would travel to Dublin Had he the opportunity to speak to someone he would not have required an undertaking in relation to the grant of rights of way as he was aware that all he was getting was what was in special condition 11 of the contract He did not expect interest to be waived at the completion but he would probably have requested He had not been sent a closing statement for the 11th July Special condition 12 was of no consequence to him and all he wished was to complete He did not have an opportunity to tell Mr Hickey this in the phone conversation Mr Fowler did not give evidence Conclusions The learned trial judge made the following primary findings of fact 1 As of the 4th July 2005 the original contract remained rescinded 2 On the 4th July 2005 the plaintiff indicated her willingness to complete the contract in accordance with its terms provided that there was a closing at the offices of the plaintiff s solicitors at 2 p m on 11th July 2005 3 This amounted to a clear and unambiguous representation promise or assurance sufficient to found an estoppel The defendant acted upon the same by altering her position to her detriment in drawing down the finance to complete and accordingly it was not open to the plaintiff to revert to the previous legal relations between the parties 4 On the 8th July 2005 Mr Gavin was unable through no fault of his to contact either Mr Hickey or Mr Fowler 5 On the 11th July 2005 at 11 30 a m Mr Gavin received a telephone call from Mr Fowler and was told that the transaction could not complete on that day but would complete on the following day 6 On the 11th July at 12 30 p m Mr Gavin received a call from Mr Hickey in which he was told that the sale was off This was confirmed by letter sent by fax later that day The effect of the telephone conversation between Mr Gavin and Mr Fowler on the 11th July 2005 at 11 30 a m is that the promise or assurance given by the vendor was for her convenience albeit the convenience was that of her solicitors altered by substituting for the 11th July 2005 the 12th July 2005 for completion In the circumstances of this case it is immaterial whether the effect was that the sale should be completed at 2 p m on the 12th July or at a time to be agreed or at a time to be stipulated by the vendor s solicitors The learned trial judge held that the plaintiff s legal rights were suspended in the period in question which she took as being until 2 p m on the 11th July 2005 and that after that date and time it was not unconscionable for the plaintiff to rely on her legal rights I differ from the learned trial judge in that I am satisfied that the vendor s entitlement to resile arose only on the 12th July 2005 and whether at 2 p m on that date or at a time to be agreed or at a time to be stipulated by the vendor is immaterial However the vendor did not await 2 p m on the 11th July but purported to resile at 12 30 a m on the 12th July 2005 It is quite clear on the evidence that the reason this occurred was a lack of communication between Mr Fowler and Mr Hickey the former not having informed Mr Hickey that he had told Mr Gavin that the sale could not be completed on the 11th July but would have to be completed the following day A number of matters weighed with the learned trial judge Mr Gavin did not attend at the appointed hour to complete the sale His intention had been to close the sale by post until his conversation with Mr Hickey at 12 30 p m He had not been informed of this requirement by the purchaser Had he been aware of the requirement on the 11th July his evidence was that he would have attended If the time available to him was insufficient to travel to Dublin he could have arranged for a solicitor in Dublin to attend the closing on his behalf The balance of the purchase price had already been transferred electronically I am satisfied that under the original concession by the vendor the purchaser was entitled to attend to complete until 2 p m on the 11th July and there was no entitlement in the purchaser to bring this time forward and withdraw the concession at 12 30 p m on that day A fortiori the date for completion having been extended by Mr Fowler to the 12th July there was no entitlement in the vendor to withdraw her concession at 12 30 p m on the 11th July The learned trial judge held that the vendor did not tender or otherwise evince a willingness to discharge the interest due under the contract However it was not a term stipulated by the vendor that she should do so I am satisfied that there was no obligation on her to do so Her obligation was to complete in accordance with the terms of the contract It was conceded before this court that there was no bona fide dispute as to interest and it may be in these circumstances that general condition 25 c has no application In these circumstances the purchaser s entitlement was to present at the closing and to complete paying interest or to suffer the consequence of the vendor resiling However the purchaser was not afforded this opportunity by virtue of the conduct of the vendor in purporting to resile at 12 30 p m on the 11th July in advance of the time stipulated 2 p m and indeed in advance of the altered date the 12th July 2005 I am satisfied that the vendor was not entitled so to resile from the promise or assurance given as varied in the telephone conversation between Mr Gavin and Mr Fowler Mr Gavin s evidence as to the contents of that phone conversation was uncontroverted Mr Fowler did not give evidence As to the other matters which were in issue between the parties at earlier stages of their dealings namely a commitment to comply with special condition 12 of the contract for sale and whether a grant of right of way to Ballybeg Road pursuant to special condition 11 of the contract for sale should be furnished at completion or left over till later these were not nor could they be in issue at completion as a term of the concession made by the vendor was that there should be completion in accordance with the contract Having regard to the foregoing I would grant the defendant the order for specific performance which he seeks Further the purchaser having made the concession in this court that interest was payable from the closing date up to the 11th July 2005 there is no dispute as to the liability to pay interest It will not be open to the purchaser to rely on general condition 25 c and to seek to close without paying interest and a condition of the order for specific performance accordingly will be that interest will be paid for that period at completion THE SUPREME COURT Record No 70 2007 Geoghegan J Kearns J Finnegan J BETWEEN ANNE B COURTNEY PLAINTIFF RESPONDENT AND THERESE McCARTHY Judgment of Mr Justice Finnegan delivered on the 4th day of December 2007 The Facts Anne B Courtney the plaintiff respondent hereinafter the vendor is the registered owner of the lands comprised in Folio 11394F in the Register of Freeholders Co Clare She offered part of the lands containing 6 6 acres for sale by public auction on the 4th March 2005 and the defendant appellant hereinafter called the purchaser was the successful bidder and signed a contract in respect of the same The matter did not proceed smoothly due to default on the part of the purchaser There was delay in paying the deposit In correspondence the purchaser sought to vary the conditions of the contract and she was in delay throughout On the 22nd April 2005 a completion notice in accordance with condition 40 of the general conditions of sale was served and interest was claimed in accordance with condition 25 of the general conditions of sale The notice to complete expired on the 20th May 2005 and after such expiry without prejudice to the notice to complete the vendor indicated a willingness to complete However the sale did not complete and by letter dated 30th May 2005 the vendor s solicitors informed the purchaser s solicitors that the plaintiff was rescinding the contract that the deposit was forfeited and that the lands would be re sold On this appeal it is accepted by the purchaser that the contract had been rescinded and the deposit forfeited By letter dated the 2nd June 2005 the vendor s solicitors wrote to the purchaser s solicitors as follows Strictly without prejudice to our letter of the 30th May 2005 and the notices therein we would advise that our client is prepared to complete with your client strictly subject to the following 1 Completion must take place on or before Friday next 3rd June 2005 2 Interest will be payable in accordance with the contract for sale 3 The open space area may be revised as per the map as furnished by John Neilan and Associates under cover of the 6th May 2005 which was previously agreed by our client Your client s architect will now have to mark up this map as our client had agreed previously to have her architect mark up the map only to be told that your clients had changed their minds as to the revision of the map 4 The contract for sale provides for the access to Ballybeg Road being granted when required and our client is prepared to grant same now provided that this does not hold up completion Please furnish draft grant of right of way together with copy map showing the route for same for approval We would point out that the very reason that the contract for sale provided that this right of way would be granted in due course if required is that the local authority are likely to specify the route of such access roadway and where it comes out unto Ballybeg Road We are pointing this out to you and would suggest that you advise your client accordingly 5 No wayleave will be considered to Jack McCarthy s land until completion has taken place We have indicated on a number of occasions that our client is agreeable to consider same subject to sight of the proposed route of same however same does not form part of the contract for sale and will be considered once completion has taken place In this regard we have asked on a number of occasions for a map showing the route of same but have received nothing This can be looked into further post completion 6 Your client s arrangements with Jack McCarthy and Mr Fitzgibbon are of no concern or interest to our client and no monies will be paid by our client for rights to which he is entitled under the contract for sale Special condition 12 of the contract for sale will stand 7 A postal completion is no longer appropriate and completion must take place at this office We note from your letters of 26th May 2005 and 1st June 2005 that your client is prepared to complete the contract for sale which strictly without prejudice is also what our client wants however this letter and the proposals therein are strictly without prejudice to the forfeiture and rescission notice which has already been served on you We should be obliged if would take your client s instructions to the above strictly without prejudice proposal and revert by return failing which we confirm that we have authority to accept service of proceedings in this matter It is sufficient to say that the matters dealt with in paragraphs 3 4 5 and 6 represented an attempt to deal with variations to the contract sought by the purchaser The sale did not complete by the deadline set The vendor by letter dated 16th June 2005 indicated a willingness to complete on the 17th June 2005 but again completion did not take place Before describing what next happened it is necessary to identify the persons involved and their relationship to the transaction Mr Fitzpatrick is the vendor s auctioneer Mr Hickey is a partner in the firm of solicitors having carriage of the sale on behalf of the vendor but is also married to the vendor s daughter Anne Courtney junior who is a tax consultant by profession Mr Fowler is a partner with Mr Hickey in the vendor s solicitors Mr Gavin is the purchaser s solicitor Of significance is the circumstance that Mr Hickey and Ms Courtney were on holiday in Kerry from the 28th or 29th June and returned to Dublin on the 11th July to attend an appointment in Crumlin Hospital with their daughter s consultant at 10 30 a m Mr Gavin was abroad until the 7th July and returned to his office on the morning of 8th July Mr Fitzpatrick the auctioneer gave evidence that throughout the course of the transaction the purchaser and Ms Courtney were in contact with him On the 4th July 2005 he received a telephone call from Ms Courtney She instructed him to contact the vendor with a view to closing the sale on Monday the 11th July without prejudice to what was going on between the respective solicitors and instructed him not to enter into correspondence He made contact with the purchaser immediately and conveyed to her Ms Courtney s instructions to him Ms Courtney gave evidence of the phone conversation with Mr Fitzpatrick but on her account she had asked him to arrange for a meeting for roughly 2 o clock on the 11th July so that the parties could talk She heard nothing back from Mr Fitzpatrick and on returning to Dublin on the 11th July she did not know whether or not anything was to happen that day There was thus a conflict on the evidence as to whether the meeting was to close the sale or to talk and see if the sale could be progressed Mr Fitzpatrick kept a note of his telephone conversation with Ms Courtney in the following terms Phone call from A C Tell purchaser to arrange to close sale Monday next 2 p m in accord with contract No correspondence Informed Therese McCarthy The learned trial judge s finding on the evidence is set out by her as follows There is a conflict as to what was the purpose of the meeting which was to take place at 2 p m on 11th July 2005 Ms Courtney s evidence was that she did not say it was to close the sale it was to talk to see if the matter could be progressed Mr Hickey s evidence was that the meeting was to be a face to face meeting in his office to see if something could be done Mr Fitzpatrick s evidence was that Ms Courtney asked him to contact the defendant with a view to closing the sale on Monday 11th July 2005 I am satisfied that Mr Fitzpatrick s note properly reflects what he was instructed to do save that it does not record that he was told that the meeting was to be in the offices of the plaintiff s solicitors in Dublin The purpose of the meeting was to close the sale Of course there was always a possibility that at the meeting it would not be possible to achieve consensus on some matter and that the sale would not be completed However that possibility in my view does not justify the nuanced account of the offer to be conveyed by Mr Fitzpatrick given by Ms Courtney and Mr Hickey Mr Fitzpatrick was instructed not to do anything to prejudice the position which had been adopted by the plaintiff that the contract had been rescinded and the defendant s deposit forfeited and in that context he was told not to issue any correspondence I am satisfied that Mr Fitzpatrick complied with the instructions he had been given Mr Gavin returned from holiday abroad on the evening of 7th July and attended at his office on the morning of Friday 8th July He was contacted by the purchaser and some time after 9 o clock on the 11th July he rang the vendor s solicitors office and asked for Mr Hickey He was told that he was on holidays and he then asked for Mr Fowler to be told that Mr Fowler would not be there that day Mr Gavin said that he would ring back on Monday By fax he then forwarded maps to be attached to the wayleave agreement and made it clear that he would be satisfied with an undertaking from the vendor s solicitor to furnish a deed granting the same with the original maps attached First thing on Monday 11th July Mr Gavin again telephoned the vendor s solicitors office He was told that Mr Hickey was on holidays He asked for Mr Fowler and was told that he was in court and would be there all day He explained the urgency of the phone call in that there was a 2 o clock deadline and asked that Mr Fowler ring him He had arranged for the balance of the purchase money to be transferred to the account of the vendor s solicitor and his bank confirmed to him before lunch that the monies were then going through At 11 30 a m Mr Fowler telephoned Mr Gavin Mr Gavin informed Mr Fowler that the balance of the purchase monies were being transferred that day Mr Fowler told him that he was in court and could not complete that day but would so the following day Mr Gavin did not make arrangements to travel to Dublin on the 11th July as his expectation was that the matter could be completed by post However if closing at the vendor s solicitor s office was required he could have arranged for some one from his office or his sister a solicitor practising in Dublin to attend on his behalf and this would not have presented a problem At 12 30 p m Mr Gavin received a phone call from Mr Hickey who enquired as to why he was not in Mr Hickey s office to complete the transaction This was the first he had heard that it was to be a closing at the vendor s solicitors office and explained that to Mr Hickey He told Mr Hickey that the balance of the purchase money was being transferred at that moment Mr Hickey said it is too late now Mr Gavin offered to release the money there and then and Mr Hickey replied it is too late the sale is off Following that telephone conversation Mr Gavin by fax authorised the vendor s solicitor to release the balance of the purchase monies to the vendor In reply to this Mr Hickey sent a fax confirming that the sale was rescinded and the deposit forfeited and that the matter was at an end The Agreement for Sale The agreement for sale is in the Law Society of Ireland Form 2001 edition General Conditions 24 25 and 26 deal with completion and interest in the following terms 24 a The Sale shall be completed and the balance of the Purchase Price paid by the Purchaser on or before the Closing Date b Completion shall take place at the Office of the Vendor s Solicitor 25 a If by reason of any default on the part of the Purchaser the purchase shall not have been completed on or before the later of a the Closing Date or b such subsequent date whereafter delay in completing shall not be attributable to default on the part of the Vendor i the Purchaser shall pay interest to the Vendor on the balance of the Purchase Price remaining unpaid at the Stipulated Interest Rate for the period between the Closing Date or as the case may be such subsequent date as aforesaid and the date of actual completion of the Sale Such interest shall accrue from day to day and shall be payable before and after any judgment and ii the Vendor shall in addition to being entitled to receive such interest have the right to take the rents and profits less the outgoings of the Subject Property up to the date of the actual completion of the Sale b If the Vendor by reason of his default shall not be able ready and willing to complete the Sale on the Closing Date he shall thereafter give to the Purchaser at least five Working Days prior notice of a date upon which he shall be so able ready and willing and the Purchaser shall not be before the expiration of that notice be deemed to be in default for the purpose of this Condition provided that no such notice shall be required if the vendor is prevented from being able and ready to complete or to give said notice by reason of the act or default of the Purchaser c The Vendor shall not be entitled to delay completion solely because of a dispute between the parties with regard to liability for such interest or as to the amount of interest payable PROVIDED ALWAYS that such completion and the delivery of any Assurance on foot of these Conditions shall be had strictly without prejudice to the right of the Vendor to pursue his claim for interest 26 The submission of an Apportionment Account made up to a particular date or other corresponding step taken in anticipation of completing the Sale shall not per se preclude the Vendor from exercising his rights under the provisions of Condition 25 and in the event of such exercise the said Apportionment Account or the said other corresponding step shall if appropriate be deemed not to have been furnished or taken and the Vendor shall be entitled to furnish a further Apportionment Account Relevant to the appeal are two special conditions special conditions 11 and 12 which provide as follows 11 In the event that Clare County Council or An Bord Pleanala as the case may be in granting planning permission for development of the Sold Lands require that access to the Sold Lands be routed to Ballybeg Road in lieu of the Rocky Road then the Vendor shall grant to the Purchasers for the benefit of the Sold Lands the non exclusive right in common with the the Vendor and all others have like rights from time to time for the benefit of the Sold Lands and every part thereof to go pass and repass at all times and for all purposes with or without animals carts or vehicles over that part of the Retained Lands as shall be made available by the Vendor to the Purchaser to enable the Purchaser to construct a road footpath grass margins and kerbs upon the Retained Lands together with services thereunder for the purpose of enabling the Purchaser to have access to the Sold Lands from the Ballybeg Road so that the purchaser may develop the Sold Lands It is agreed that the ownership of the roads footpaths grass margins and kerbs together with services thereunder will remain with the Vendor until such time as they are taken in charge by the local authority The Purchaser shall enter into an indemnity in relation to the repair maintenance and insurance of all such roads footpaths grass margins kerbs and services etc as are constructed upon the Retained Lands until taken in charge by the local authority and shall indemnify the vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given 12 The Purchasers shall within the Perpetuity Period at their own cost and expense construct on the Sold Lands roads footpaths grass margins kerbs and services for the purposes of the development of the Sold Lands and shall bring such roads footpaths grass margins kerbs and services to a point two metres inside the boundary of the Retained Lands such that the Retained Lands are connected by such roads footpaths grass margins kerbs and services to the public roadway and services to enable the Vendor to connect into such roads footpaths grass margins kerbs and services for the benefit of the Retained Lands and every part thereof The Purchaser shall

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  • c a right of action over is maintained by the organiser against such other supplier s for the latter s failure to perform the organiser s contracted for obligations Thus when the consumer the respondent in this appeal enters into the agreement it may well be that some of the organiser s contractual obligations will be performed by other persons such as hotel proprietors even in another Member State That however does not change the relationship between the organiser and the consumer who frequently will not even know the name of the supplier of the services not being performed by the organiser himself This is why when considering the meaning of Section 20 2 of the Act of 1995 Article 5 2 of the Directive that organiser s liability continues to exist unless there is to be no fault on his part because the failure was due to an event which the organiser or the supplier of service even with all due care could not foresee or forestall Apart from such excusing circumstances it seems to me that the organiser remains at all times liable to the consumer for the wrongful acts in question If it be the case that the organiser wishes to invoke the defence available in subsection 20 2 c ii of the Act of 1995 it is for him to establish that there was no such fault either on his own part or on the part of a supplier of the service which he has engaged once a failure to perform is established by the consumer On the questions raised by Mr Counihan as to the standard to be applied and as to whether the respondent discharged the burden of proof in this case it is useful first to consider the Irish and United Kingdom cases on the appropriate test or standard to be applied and which have been invoked by both parties In Ireland prior to the passing of the Act of 1995 the case law establishes that the standard of reasonable skill and care is appropriate in assessing the performance of services for the purpose of establishing whether there has been a breach of contract or that a party is liable to another in tort In McKenna v Best Travel Ltd 1998 I R 57 a case whose events predated the transposition of the Directive an appeal was taken to the Supreme Court on a limited point of law as to whether the defendant tour organiser was liable in tort for failure to give a warning in respect of conditions in Israel which the customer was visiting as part of a holiday The claim was originally founded both in contract and in tort The High Court judge had found that there had been no breach of contract but a breach of duty in tort to the customer In the course of his judgment on the appeal to this court Barron J stated The duty of care in tort arises from the proximity creased by the contractual relationship The duty extends to all matters concerning the safety well being and comfort of the tourists which by the nature of the relationship between the tourists and those providing the service would or should be known to the latter but not to the former The defendants in this case were not insurers that nothing would happen to injure the plaintiff Their obligation stops at taking all reasonable steps to ensure the safety and well being of their customers The test is what a reasonably prudent tour operator exercising reasonable care would consider necessary to inform those travelling with it The first of the English cases cited to this court is Hone v Going Places Leisure Travel unreported 13 June 2001 2001 a decision of the English Court of Appeal There the plaintiff in the course of an emergency crash landing in which passengers had to disembark from the aeroplane by emergency chute being unable to avoid colliding into another passenger who was stationery at the bottom of the chute was in turn struck by the next passenger exiting the aeroplane and suffered damage to his spine He sued the defendant under United Kingdom legislation corresponding to the Act of 1995 He alleged there was a failure to perform or an improper performance of the contract because inter alia there was no trained personnel at the top or bottom of the emergency chute and no instructions to passenger to remove footwear or to use the chute only when it was clear of other passengers He also claimed that the United Kingdom Regulations which transposed the Directive more or less verbatim imposed a strict liability test on the organiser subject only to the defences found in the Regulations which mirror those in Section 20 2 of the Act of 1995 The High Court judge held there that it was for the plaintiff to show that there was improper performance and in the context of that case this meant he had to show that his injuries were attributable to the fault of someone supplying services in relation to the package tour Liability was thus not absolute or strict subject to certain exceptions The judge also held that the plaintiff had in that case wholly failed to establish that the accident was anyone s fault The plaintiff was given leave to appeal to the Court of Appeal on the single question whether the English Regulations transposing the Directive imposed strict liability In the Court of Appeal Longmore L J found that it is necessary frequently to imply a term as to the standard of performance since the requirement will not normally be set out in any detail in a contract and that the normal implication will be that the service contracted for will be rendered with reasonable skill and care unless absolute obligations are assumed for example the provision of a hotel specifically with a swimming pool Whereas previously at common law it was controversial as to whether a travel agent himself assumed the relevant contractual responsibility or only agreed to put the customer into contractual relations with the actual provider of the service this situation is now resolved by the Regulations The United Kingdom Regulations do not give any guidance as to the extent of the obligation However the judge found that the case of Wong Wee Wan v Kwan Kin Travel Services Ltd 1996 1 WLR 38 was a good example of the approach of the common law on both questions In that case it was held that a term was to be implied into the contract that reasonable skill and care would be used in the rendering of the services which the travel agent had contracted to provide whether carried out by him or by someone else Longmore L J stated that it was not possible to determine whether a particular complaint founds improper performance by reference to the Regulations themselves He stated To my mind Regulation 15 2 does not give the answer to the question What is improper performance Rather it is a requirement of the application of Regulation 15 2 that there should be improper performance That can only be determined by reference to the terms of the contract There may be absolute obligations but in the absence of the assumption of an absolute obligation the implication will be that reasonable skill and care will be used in the rendering of the relevant service There will thus be no improper performance of the air carriage unless there is an absence of reasonable skill and care in the provision of that service If as here it is the claimant who seeks to rely on regulation 15 2 then he has to show that there has been improper performance Mr Dean submits that there was improper performance because the parties expected that the air carriage would be safely executed That would only be the position if there were a term of the contract that the air carriage would be safely executed For my part I do not consider that there was any such absolute term In the absence of an express agreement the implication was that the air carriage would be performed with skill and care emphasis added The above case of Wong Mee Wan v Kwan Kin Travel Services Limited Ors supra also cited by both parties before this court was a case which came on appeal from the Hong Kong Court of Appeal to the Privy Council and concerned the appropriate standard to be applied in a contract of service being a package tour of part of mainland China offered by a Hong Kong travel company at an all inclusive price The main purpose of the tour was to visit a lake in China and part of the tour consisted of a lake crossing during which crossing the plaintiff was injured The Privy Council held that there was an implied term of the contract that the services would be carried out with reasonable skill and care This term did not mean that the defendant undertook to ensure the safety of the plaintiff or of the component parts of the package or that the plaintiff s daughter would be reasonably safe It was a term that reasonable skill and care would be used in rendering the services to be provided The trip had not been carried out with reasonable skill and care in that no steps had been taken to see that the driver of the speedboat was of reasonable competence and experience and the first defendant was liable for such breach of contract On the question that such a term would impose an intolerable burden on package tour operators Lord Slynn of Hadley stated It must be borne in mind that the tour operator has the opportunity to seek to protect himself against claims made against him in respect of services performed by others by negotiating suitable contractual terms with those who are to perform those services He may also provide for insurance cover It also has to be borne in mind in considering what is tolerable or reasonable between the parties that the traveller in the position of Miss Ho Shui Yee could have no influence on the terms negotiated by the tour operator with third parties and if injured by their lack of care would if having no right against the package tour operator be obliged to pursue a claim in a foreign country The difficulty involved in doing so does not need to be elaborated In considering what is or is not tolerable as between traveller and tour operator it is of some relevance to note the Package Travel Package Holiday and Package Tours Regulation 1992 made pursuant to Council Directive 90 314 EC The organiser or retailer of the package tour 15 1 is liable to the consumer for the proper performance of the obligations under the contract irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services 2 The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract These terms do not of course apply to the present contract but they do throw some light on the contention that an unreasonable burden would be imposed if the contract were held to contain a term that reasonable skill and care would be used The case of Healy v Cosmoair Plc 2005 All E R 432 invoked by Mr Counihan on behalf of the Appellant also proceeded on the basis that the standard was that of reasonable skill and care The technical issue in that case which depended on Spanish standards applicable to them concerned only the question of slippiness of tiles There is no true comparison between the position in the present case and the facts in that latter case The Respondent invokes that case apparently on the hypothesis firstly that there may be a difference between Irish and Spanish law on the appropriate legal standards governing the safety of hotels for visitors or guests and on the further hypothesis that it may be the case that the Spanish standard governing the safety of hotel premises is lower than that which is applicable in Irish law and more easily met by the hotel owner for there would be no point in the appellant raising such an issue unless that were the case Apart from the fact that this does not appear to have been an issue in the High Court there was no evidence to support either hypothesis Further the application of a lower standard if such exists in respect of the safety of hotels in Spain might not necessarily comply with the provisions of the Directive In that regard the following extract from the Opinion of Advocat General Tizzano in the case of Leitner v TUI Deutschland GmbH Co KG a case invoked by both parties is telling More specifically I note that in the event of any doubt the provisions of the Directive in question must be interpreted in the manner most favourable to the person whom they are intended to protect namely the consumer of the tourism service That may be inferred not only from the systematic analysis of the text and aims of the Directive but also from the abovementioned fact that it was adopted pursuant to Article 100a paragraph 3 of which requires that harmonisation measures in respect of consumer protection should be based on a high level of protection The conclusions to be drawn from all of the above cited cases are that both before and after the coming into force of the Directive and its transposition in national law the established principle is that the organiser is not an insurer to the customer The learned High Court judge correctly found that the hotel proprietor was not such an insurer under the legislation The above cases also establish the principle that the test is not one of strict liability and in that regard I am satisfied also that the High Court judge s finding when correctly read was not that strict liability applied The final principle clearly established by those cases is that the standard by which the acts in question are to be judged is that of reasonable skill and care which standard if not expressed in a contract will be readily implied into it In the circumstances I am satisfied that the reasonable skill and care test generally applicable according to the above case law and by statute and applied by the learned High Court judge was the correct test in law There remains only the question as to whether the plaintiff established that there was a failure to perform an obligation under the contract on the part of the hotel proprietor in Spain by reference to that test of reasonable skill and care I reject the appellant s argument that the extent of the liability on the organiser under a contract of this nature is confined so far as hotel premises are concerned to ensuring that the structure itself is safe The contract here was for travel and hotel accommodation on a half board basis and the latter clearly included the provision of an evening meal as a necessary ancillary part of the accommodation service provided An implied term that the same would be furnished with reasonable skill and care follows from my earlier findings The learned High Court judge heard and accepted the evidence of the plaintiff and others as to the following facts b there was evidence of a liquid substance being on the hard marble floor measuring about 30 inches in diameter which from its description could properly be found by him to be a soup or a sauce which had fallen on the floor and on which the plaintiff slipped c the nature of the spillage was such that it must have been caused by staff clearing away foodstuffs it being evident that they were doing just that when the accident occurred d it was not possible for the plaintiff while navigating past a pillar where the spillage had occurred to have seen it or to have had any opportunity to avoid it a fact now accepted by the defendant e the spillage had not been removed when the respondent went towards it a there was no warning or other indication by means of any crash of utensils for example such that might have put the plaintiff on notice that something untoward had occurred and f there was no barrier or tape or other item placed around the area if there had been insufficient time for the hotel staff to remove the spillage before the Plaintiff suffered the accident Moreover when the accident did occur it is unchallenged that there was an immediate direction to the staff to bring buckets of sawdust or some such absorption material to where the spillage took place to cover it and sweep away the debris It is telling that this was done on the instructions of the Manager of the hotel for it clearly follows that the spillage could have been readily taken care of and that the hotel had a system in place for dealing with just such an event and was able to do in the normal course of events but had not done so on the occasion in question prior to the respondent falling Having regard to the foregoing the learned trial judge had before him evidence that the accident was a wholly foreseeable event on the part of the service supplier the hotel in Spain that they had in place a system which could have warned of the hazard and or prevented the accident but had not operated that system on the evening in question In the circumstances the learned High Court judge was entitled to find that the service in question was not supplied with reasonable skill and care He was therefore correct to find for the Plaintiff I would dismiss the appeal and affirm the order of the High Court THE SUPREME COURT 111 05 Hardiman J Fennelly J Macken J Between Mary Scaife Plaintiff Respondent and Falcon Leisure Group Overseas Ltd Defendant Appellant Judgment delivered on the 4th day of December 2007 by Macken J This is an appeal from a judgment of the High Court of the 23rd February 2005 and from the Order made thereon by which the High Court found in favour of the Plaintiff against the Defendant in respect of personal injuries sustained by the plaintiff in the course of a holiday in Spain contracted for with the Defendant in the State The Background Facts The plaintiff respondent entered into an agreement the agreement with the defendant appellant a company registered in the United Kingdom and having a place of business in the State and who is a provider of inter alia package holidays The agreement in writing was made through a travelling companion of the plaintiff on 29th January 1998 By the terms of the same the defendant agreed in consideration of the payment of an appropriate sum to supply to the plaintiff respondent and others in a small group travelling with her a package holiday including flights and hotel accommodation the latter in the present case comprising what is known as half board that is breakfasts and evening meals at Cambrils Princess Hotel in Salou Spain The High Court judge found as a fact that the hotel itself was of a good standard since the plaintiff and others in her group had previously stayed there and had chosen to return to that particular hotel On the 21st May 1998 during the course of an evening meal taken towards the end of the serving period the plaintiff was injured The injury occurred when the plaintiff while walking past a pillar on her way to the buffet table to serve herself fell on liquid foodstuff which had fallen on the floor behind a pillar in circumstances where it was found by the High Court she could not have seen the spillage and had no warning of its existence until she fell in it She suffered physical injuries as a result and these are not disputed by the defendant Although in the course of the High Court proceedings the defendant alleged that the Plaintiff had caused or contributed to her injuries this defence was rejected by the High Court judge as being without foundation and the defendant does not seek to maintain that defence in this appeal In the High Court evidence was tendered by and on behalf of the Plaintiff The Defendant did not go into evidence relying instead on legal submissions as to liability The High Court proceedings the argument and the legal findings In the High Court the plaintiff relied on the provisions of the Package Holidays and Travel Trade Act of 1995 the Act of 1995 an Act which transposed into Irish law Council Directive 91 314 EEC of 13 June 1990 on package travel package holidays and package tours OJ 190 L 158 the Directive The defendant appellant has accepted that it is an organiser that the plaintiff respondent is a consumer the hotel proprietor in Spain a service supplier and that the holiday was a package holiday all within the meaning of S 20 of the Act of 1995 which Section corresponds to Article 5 of the Directive By an ex tempore judgment of the High Court Herbert J delivered after an oral hearing it was held that the plaintiff was entitled to succeed against the Defendant under S 20 of the Act of 1995 The High Court judge found that there was a legal duty on a hotel proprietor to take reasonable care to ensure that his hotel was reasonably safe and was maintained in a reasonably safe condition for visitors to the hotel He determined that S 20 of the Act was not to be given a restrictive meaning but that the hotel proprietor was not under the Act of 1995 and contrary to the argument of counsel for the defendants an insurer to the plaintiff or bound to foresee or forefend against every possible event It was only obliged to take reasonable care in respect of an event which was reasonably foreseeable such as the event which befell the plaintiff He found that even if the hotel ordinarily operated to a satisfactory standard there was no evidence to suggest that any appropriate system for avoiding the accident or for warning of the existence of the liquid was in place on the evening in question Rather on the contrary it had not acted with reasonable skill and care on the evening in question As concerns the Act of 1995 the learned High Court judge held that the clear intention of the legislature on the plain meaning of the words used was to give effect to the intention behind the Directive This intention was to facilitate citizens of Member States who have accidents while on a package holiday abroad by allowing them to sue so to speak a central person so that they do not have to sue the supplier of the particular service in this case the hotel in the country of domicile of the hotel which in this case would have been Spain They can sue the organiser And the Section says that the remedy or right of action the organiser may have against the retailer or other supplier of services is not in any way affected He found that the Directive was sufficiently clear on its wording so as not to require him to embark on a purposive interpretation of it He continued So although in this case Falcon Leisure Group Overseas Ltd could be said to have done nothing wrong whatsoever nevertheless because of the business which they are in that is organising and selling package tours they have to accept as one of the downsides of that that they will be responsible if somebody providing a service does not properly perform the contract In this case it would have been clearly an implied term of the contract if not an express term that the place provided where the ladies were to stay under the package holiday would be safe and would be kept safe The High Court judge found that the legislative scheme has as its consequence that the organiser though not in any way to blame himself must shoulder the position of defendant to the plaintiff and then recoup their losses from the actual tortfeasor or the person who is the contract breaker in this case the provider of the service The High Court judge determined that according to the Act of 1995 the defendant was liable for the wrongful acts of the hotel owner being the latter s improper performance of one of the obligations under the package holiday agreement and that the plaintiff was entitled to recover from the defendant by virtue of Section 20 of the Act of 1995 damages in respect of the injuries sustained by her From that judgment the defendant has appealed to this court The Appeal Senior counsel Mr Counihan on behalf of the appellant argues that Article 5 of the Directive and therefore S 20 of the Act of 1995 and was never intended to harmonise the law of torts relating to accidents causing injury but only the law relating to obligations arising under a package holiday contract itself so as to ensure the proper performance of the obligations undertaken Section 20 of the Act of 1995 does not equate the proper performance of those obligations with their perfect performance He submits that the learned High Court judge misdirected himself in law in holding the appellant was liable because Section 20 of the Act of 1995 does not cover what he calls an event of casual negligence such as occurred in the present case and about which the appellant could have no knowledge and over which it could have no control within the meaning of S 20 2 C ii of the Act of 1995 Although he accepts that according to the scheme provided for in the Directive and the Act of 1995 in which there is an organiser a consumer and other suppliers of services which the organiser has undertaken contractually to provide to the consumer the correct interpretation of Section 20 of the Act of 1995 he argues is to make the appellant liable to the respondent only where the supplier of the service that is to say the hotel owner in Spain would have been liable to the respondent were it not for the existence of the scheme established by the Directive and the Act of 1995 It follows that the Act of 1995 cannot be understood as providing that the appellant is to be made liable to the respondent merely because the former s right of action over against a non performing service supplier such as the hotel is enshrined in the Act of 1995 Further counsel submits that none of the recitals to nor Article 5 of the Directive provides that the protection afforded to a consumer is to constitute a form of insurance or guarantee on the part of an organiser Therefore the principle of strict or absolute liability which he argues the High Court judge adopted cannot apply to the appellant in respect of every injury howsoever caused to a consumer such as the respondent who undertakes a package holiday The Act of 1995 must be understood as providing for liability on the part of the appellant only if there has been fault on the part of the hotel owner in Spain leading to the improper performance of the particular obligation in the contract The respondent must first therefore establish that there was such a failure on the part of the hotel owner or operator in this case to perform an obligation under the contract The mere fact that there was a spillage of food upon which the respondent then fell does not ipso facto establish that either the hotel failed properly to perform obligations arising under the contract Counsel for the appellant argues that for the purposes of determining the liability imposed on him for wrongful acts of a service supplier such as the hotel pursuant to Section 20 of the Act of 1995 it is not possible to discern whether the standard to be imposed on the hotel owner or proprietor for whose acts the appellant is being sought to be made liable is the Irish legal standard or the Spanish legal standard but that it must be the latter being the standard governing the place where the accident occurred Senior Counsel Mr McGovern for the respondent clarifies that he does not contend that S 20 of the Act of 1995 and by implication Article 5 of the Directive imposes strict liability on an organiser such as the appellant for the breach of obligations by a service supplier in all circumstances He submits that the effect of Section 20 of the Act of 1995 implementing the Directive is to place primary liability on the appellant for the proper performance of the obligations comprised in the contract package whether the obligations are to be performed by him or by others such as the hotel owner in Spain The appellant can escape liability only in the limited circumstances identified in Section 20 2 of the Act of 1995 that is to say only if the events in question could not have been foreseen or forestalled by the appellant or the hotel owner He submits that the intention to protect the consumer in circumstances such as the present is reinforced by the provisions of Section 20 2 of the Act of 1995 Finally he argues that since the contract provided for travel accommodation and the provision of meals on a half board basis it was an implied term of the contract between the appellant and the respondent that all services and facilities would be provided with reasonable skill and care and to a reasonable standard and they were not He reminded this Court that the High Court judge had found that on the evidence the hotel had been very satisfactory in all respects on an earlier occasion when the respondent had stayed there but not on the occasion in question in that any system which might ordinarily have operated in the hotel to avoid or minimize accidents had not operated appropriately or properly on the occasion in question for which the appellant as organiser was liable under the Act of 1995 Each of the parties to the proceedings has invoked Irish and United Kingdom case law in support of their respective submissions This case law is considered further below Conclusion For the purposes of this judgment it is essential first to set out the provisions of Section 20 of the Act of 1995 which transposed into Irish law the relevant corresponding provisions of the Directive The Act of 1995 has as its long title the following An Act to enable effect to be given to Council Directive No 90 314 EEC of 13 June 1990 of the European Communities on package travel package holidays and package tours to amend the Transport Tour Operators and Travel Agents Act 1982 and to provide for connected matters Article 5 of the Directive is transposed by the provisions of S 20 of the above Act which in its relevant part reads as follows 20 1 The organiser shall be liable to the consumer for the proper performance of the obligations under the contract irrespective of whether such obligations are to be performed by the organiser the retailer or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services 2 The organiser shall be liable to the consumer for any damage caused by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of the organiser or the retailer nor to that of another supplier of services because a the failures which occur in the performance of the contract are attributable to the consumer b such failures are attributable to a third party unconnected with the provision of the services contracted for and are unforeseeable or unavoidable or c such failures are due to i force majeure that is to say unusual and unforeseeable circumstances beyond the control of the organiser the retailer or other supplier of services the consequences of which could not have been avoided even if all due care had been exercised or ii an event which the organiser the retailer or the supplier of services even with all due care could not foresee or forestall 8 The provisions of this section are without prejudice to the provisions of the Hotel Proprietors Act 1963 emphasis added The Hotel Proprietors Act 1963 referred to in S 20 8 is an Act which legislates for certain rights and obligations concerning hotel proprietors and guests of a hotel The relevant provision of this Act is the following 4 1 Where a person is received as a guest at a hotel whether or not under special contract the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that for the purpose of personal use by the guest the premises are as safe as reasonable care and skill can make them The Occupiers Liability Act 1995 is an Act which legislates for certain rights and obligations concerning occupiers of premises and visitors to those premises Section 3 of that Act provides as follows 1 An occupier of premises owes a duty of care the common duty of care towards a visitor thereto except in so far as the occupier extends restricts modifies or excludes that duty in accordance with section 5 2 In this section the common duty of care means a duty to take such care as is reasonable in all the circumstances having regard to the care which a visitor may reasonably be expected to take for his or her own safety and if the visitor is on the premises in the company of another person the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor s activities to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon As concerns the Directive itself since Section 20 of the Act of 1995 faithfully transposes the provisions of Article 5 of the Directive it is not necessary to set out the terms of that Article separately It is however relevant to cite Article 8 of the Directive which reads Member States may adopt or retain more stringent provisions in the field covered by this Directive to protect the consumer It seems to me that the provisions of the Hotel Proprietors Act 1963 are within the ambit of Article 8 of the Directive since the obligation concerning the state of hotel or other premises as well as the safety of guests are provisions protecting the consumer which are or may be more stringent than the provisions of the Directive Similarly apart from the statutory protection given to hotel guests as set forth above and as specifically retained by the Act of 1995 an occupier s common law liability to visitors now enshrined in S 3 of the Occupiers Liability Act 1995 may well also fall within Article 8 of the Directive even if not specifically referred to in the Act of 1995 Having

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