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  • own property Neither of these situations in my view have the smallest analogy with the serious matter at issue here whether to what extent and how Dáil Eireann may protect its members private papers from a lawful demand for production by a Tribunal of Inquiry which is itself the instrument chosen by the Oireachtas to enquire into matters of urgent and fundamental public importance The Tribunal has of course proceeded openly and in accordance with law in a manner which make analogies with the deployment of unlawful force quite inapposite 62 It seems to me to be clear from the wording of Article 15 10 itself that the protection against a prima facie lawful demand for production must be by positive and specific decision of the Committee To adapt the words of the learned trial judge the House may render the private papers of members immune from discovery in production elsewhere by declaring them to be so 63 Such a declaration must also be explicit and specific as to the papers to which the protection is extended I would entirely reject any submission that the conferring of a privilege or immunity from a disclosure which is lawfully demanded can be inferred or deduced from other actions To put this another way I believe that the conferring of protection and the extent of that protection by the Committee must be clear to demonstration from a perusal of the official record of the Committee s actions This is so I believe for precisely the same reasons which led to the conclusion that the privileges conferred by Article 15 12 and 13 must be strictly construed This is a power to protect private papers from the otherwise lawful scrutiny of a Tribunal of Inquiry in whose establishment Dáil Eireann itself and Deputy Howlin himself participated Moreover it is proposed to withhold these papers in circumstances where their disclosure may be important to individuals attempting to vindicate their good name I am not saying that the Committee cannot protect these papers despite the manifestly strong and legitimate demand for their disclosure I am saying that if it does so it must be perfectly clear that it has invoked the power to protect against a specific demand for disclosure whose significance it has considered and it must be equally clear to what specific papers the protection applies The Resolution 64 Turning to consider the resolution in light of the analysis above I cannot regard it as a proper or valid exercise of the Article 15 10 power This important constitutional power to invoke a protection which is not available to any citizen other than a member of the Oireachtas cannot in my view be exercised except in absolutely express terms I agree with what the respondent said in his ruling on this aspect In my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the Committee to that express intent 65 This seems quite consistent with what was said by Geoghegan J in Maguire v Ardagh 2002 1 IR 419 at 736 While it is true that out of respect for the separation of powers the Courts will not interfere with the internal operations of the orders and rules of the Houses in respect of their own members the non justiciability principle stops there If there is some essential procedural step which a House of the Oireachtas or a committee thereof has to take before the rights of an outsider that is to say a non member of the House can be affected then at the suit of that outsider the Courts can give relief if that essential step is not taken 66 It seems to me that the motion is entirely neutral in its terms Various matters are noted in a wholly neutral fashion neutral indeed to the point of being meaningless The phrase noting Article 15 of the Constitution means nothing at all There is no reference to the demand for production its source its importance or the importance of any countervailing considerations which the Committee may or may not consider to exist The effective part of the order simply authorises the Parliamentary Legal Adviser to instruct counsel to apply for representation and make submissions concerning the powers and privileges of Dáil Eireann and its members This form of words simply does not address the fundamental question is the Committee or is it not conferring protection on Deputy Howlin s private papers which will allow him to resist a lawful demand for their production notwithstanding their manifest importance to the Tribunal s work 67 If this important constitutional power is to be exercised it must be exercised by the body on whom it is conferred Dáil Eireann or its undisputedly lawful delegate the Committee It cannot be derived from the actions of one or other of these Bodies plus those of counsel instructed with to judge by the motion a wholly neutral remit 68 It will be recalled that the learned trial judge found that the sub Article contained a power to confer immunity from disclosure on private papers by declaring them to be so The motion passed on the 6th February 2002 emphatically does not do this On the contrary it is studiedly vague Mr Hogan suggested that it should be construed liberally and not narrowly like a search warrant or a taxing statute I cannot agree with this submission A search warrant for example is construed strictly because it constitutes an invasion of an individual s constitutional right to the security of his dwellinghouse or other property But this protection if lawfully invoked will frustrate the otherwise legitimate and important demand of a Tribunal of Inquiry and tend on the Tribunal s undisputed findings to the frustration of its work This in turn may inure to disadvantage of the entire community No doubt the Committee would wish to give the issue solemn and detailed consideration before they invoke the power in such circumstances They may indeed have done so but if they did it is not evidenced in their resolution Indeed the resolution does not even evidence that they invoked the power at all The Committee are undoubtedly possessed of a power themselves to confer protection on the documents but it appears to me that they decided to judge from the resolution only to make submissions of an unspecified character concerning the powers and privileges of Dáil Eireann and its members 69 In reaching this conclusion it is fair to record that none of the parties represented on the hearing of this appeal considered the resolution to be a satisfactory one On behalf of Deputy Howlin Mr Hogan said that it would be better if the terms of the resolution were more forthright and that the resolution itself may well be ambiguous Mr Gleeson S C on behalf of the Committee conceded that there are some things which could be there but aren t referring specifically to the fact that the resolution did not record the documents to which it applied Asked whether the Committee s invitation to the Court to construe an exercise of the power from the terms of the motion plus the submissions later made by counsel did not suggest a very idiosyncratic exercise of the power counsel could only argue that although not specified in the resolution the draft order of the Tribunal was known before the resolution so that the Committee knew the general nature of the documents in question Counsel for the Deputy and the Committee were unfailing in their ingenuity in standing over the resolution and made such concessions only as were absolutely necessary but these concessions are plainly suggestive of ambiguity If necessary I would hold that ambiguity alone is sufficient to demonstrate that there has been no proper or lawful exercise of the power contained in Article 15 10 by the Committee Articles 15 12 and 13 and Common Law privilege 70 I agree with the learned trial judge that the facts established in this case do not engage the provisions of Article 15 12 or 13 for the reasons which he gives 71 The learned trial judge did not find it necessary to consider the Common Law privileged claimed by the applicant Such a privilege would clearly not be an absolute one Assuming that it were open to this Court to consider these submissions I could find no fault in the first respondent s approach to this question and no basis for regarding his decision as unsound in law I would remark only that I am wholly unconvinced by the applicant s submission that the innocence at stake exception to a privilege assuming there to be a privilege applies only in a criminal trial 72 The Oireachtas has thought it necessary that a tribunal should investigate allegations that a large number of convictions were achieved by planting evidence and that two Assistant Commissioners of An Garda Síochána were aware of this That is an allegation of the corruption of the criminal trial process itself by gardaí To hold that an innocence at stake exception to privilege could have applied during the trial process which was allegedly corrupted and during which the allegations were in any event unknown but not during the investigation into the alleged corruption would be an absurdity It would ensure the frustration of the inquiry which the Oireachtas itself has set in motion These allegations raise in terms the prospect that people have been framed and thereby convicted of criminal offences In my view this presents an innocence at stake situation in an acute form Conclusion 73 I would allow the appeal and substitute for the order of the High Court an order refusing the relief sought APPENDIX I CONFIDENTIAL CONFIDENTIAL CONFIDENTIAL Confidential information has come to hand from a serving Detective Inspector of An Garda Siochana attached to a Station in the D M A concerning the Garda Investigation in the Donegal Division 1 There appears to be a problem concerning the ongoing investigation into the conduct of one Detective Sergeant John White which would give the impression that the matter is not being dealt with in accordance with the Commissioner s instructions to the investigating Officer Kevin Carty If this is the case it is very worrying to say the least 2 The reason for this is the fact that Detective Sergeant White worked with both Mr Carty and Assistant Commissioner Tony Hickey during his service in Dublin and whenever evidence had to be got to prove a case beyond doubt Sergeant White was the man who was given the job of producing the said evidence by unlawful means 3 A large number of convictions were achieved by planting evidence and both Carty and Hickey were aware that White was the source of the trumped up evidence Payback was extra expenses for White in the form of unworked overtime travelling and subsistence allowances and the misappropriation of Department of Justice funds continued up to 1998 as White was given blanket permission to claim the aforementioned expenses 4 There is now a fear among members of the investigation team that if White is fully investigated he will use his knowledge of those matters as his defence and in doing so a number of persons convicted which involved lengthy prison sentences will prove to have been unsafe and the consequences for those involved and indeed the entire force would be unthinkable 5 Another matter which White was involved in was the planting of stolen property on suspects and as result of this he had a huge amount of stolen property at his disposal This property was not officially documented in official property books and this malpractice enabled him to have a huge amount of stolen property at his disposal When he moved to the Donegal Division he moved a large amount of said stolen property with him and this was known by the Authorities and indeed was a running joke among ordinary Gardai 6 Taking all this reliable information into account it is felt that this investigation will be unsuccessful in establishing the true facts of the illegal activities of Detective Sergeant White and the only other alternative is a full and open public enquiry It is known that White is in regular contact with Assistant Commissioner Hickey and has an eighteen page document concerning his and others activities whilst he was stationed in Dublin and this document it appears is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation END APPENDIX II TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAÍ IN THE DONEGAL DIVISION Appointed by Instrument made by the Minister for Justice Equality and Law Reform upon the 24th day of April 2002 entitled Tribunals of Inquiry Evidence Act 1921 Establishment of Tribunal Act 2002 ORDER OF DISCOVERY Dated this 28th day of February 2003 PURSUANT to the powers conferred upon me by the Tribunals of Inquiry Evidence Acts 1921 to 2002 IT IS ORDERED That Senator James Higgins of Devlis Ballyhaunis Co Mayo do make discovery on oath of and produce to the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division Belfield Office Park Beaver Row Clonskeagh Dublin 4 1 All notes documents records statements memoranda and correspondence relating to events concerning allegations contained in documents received by the said Senator James Higgins between the 25th day of June 2000 and the 15th day of July 2000 both dates inclusive and information received by Mr Brendan Howlin T D on the 25th June 2000 that two senior members of An Garda Siochána may have acted with impropriety and relating to the making of the allegations contained in the said documents and information including telephone facsimile and mobile phone records in respect of telephone numbers specified numbers relating thereto Including the names and addresses of the subscriber s accounts relevant to the said incoming and outgoing telephone calls or facsimile communications in respect of the period from the 25th day of June 200 to the 15th day of July 2000 both dates inclusive IT IS ORDERED By Consent that eircom Limited of Ardilaun House 112 114 St Stephen s Green West Dublin 2 do make discovery on oath and produce to the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division Belfield Office Park Beaver Row Clonskeagh Dublin 4 1 All notes documents records statements memoranda and correspondence relating to the making of allegations contained in documents received by Senator James Higgins between the 25th day of June 2000 and the 15th day of July 2000 both dates inclusive and in information received by Mr Brendan Howlin T D on the 25th June 2000 that two senior members of An Garda Síochána may have acted with impropriety and in particular all telephone and facsimile records in respect of telephone numbers specified numbers in respect of the said period relevant to Paragraph h of the Tribunal s Terms of Reference including the names and addresses of the subscriber s accounts relevant to the said incoming or outgoing telephone calls or communications by facsimile IT IS ORDERED That Mr Brendan Howlin T D of Whiterock Hill Wexford do make discovery on oath of and produce to the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division Belfield Office Park Beaver Row Clonskeagh Dublin 4 1 All notes documents records statements memoranda and correspondence relating to information received by Mr Brendan Howlin T D from the 25th day of June 2000 until the 4th day of July 2000 both dates inclusive in respect of allegations that three members of An Garda Síochána including two senior members may have acted with impropriety and relating to the making of allegations to Mr Brendan Howlin T D including all telephone facsimile and mobile phone records relating thereto Including the names and addresses of the subscriber s accounts relevant to the said incoming and outgoing telephone calls or facsimile communications in respect of the said period from the 25th day of June 2000 until the 4th day of July 2000 both days inclusive IT IS FURTHER ORDERED By Consent that eircom Limited of Ardilaun House 112 114 St Stephen s Green West Dublin do make discovery on oath and produce to the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division Belfield Office Park Beaver Row Clonskeagh Dublin 4 1 All notes documents records statements memoranda and correspondence relating to information received by Mr Brendan Howling T D between the 25th day of June 2000 and the 4th day of July 2000 both dates inclusive and in particular all telephone facsimile and mobile phone records in respect of phone services supplied to Mr Brendan Howlin T D of Whiterock Hill Wexford in respect of the said period from the 25th day of June 2000 to the 4th day of July 2000 both dates inclusive relevant to Paragraph h of the Tribunal s Terms of Reference including the names and addresses of the subscribers accounts associated with relevant incoming or outgoing telephone calls or communications by facsimile IT IS FURTHER ORDERED That the said Senator James Higgins Mr Brendan Howlin T D and eircom Limited do file Affidavits of Discovery with and produce the said documents to the Registrar of the Tribunal at the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division Belfield Office Park Beaver Row Clonskeagh Dublin 4 within a period of four weeks from this date IT IS FURTHER ORDERED That there be a stay of four weeks on this Order and further that such stay continue pending final determination or resolution of any legal proceedings which may be initiated within the said period of four weeks in respect of the making of this Order or any part thereof within the State Frederick Morris The Honourable Mr Justice Frederick Morris Sole Member of the Tribunal of Inquiry into Complaints concerning some Gardaí in the Donegal Division I CERTIFY THIS TO BE A TRUE COPY Brendan O Donnell Registrar to the Tribunal TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAI IN THE DONEGAL DIVISION ORDER OF DISCOVERY Belfield Office Park Beaver Row Clonskeagh Dublin 4 2005 IESC 85 THE SUPREME COURT 121 139 04 Murray C J Denham J McGuinness J Hardiman J Geoghegan J Between BRENDAN HOWLIN Applicant and THE HONOURABLE MR JUSTICE FREDERICK MORRIS SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAÍ OF THE DONEGAL DIVISION Respondents and EIRCOM PLC and THE COMMITTEE ON PROCEDURES AND PRIVILEGES OF DÁIL EIREANN Notice Parties JUDGMENT of Mr Justice Hardiman delivered on the 20th day of December 2005 1 This is the appeal of the respondent against the judgment and order of the High Court Kearns J perfected the 2nd day of March 2004 whereby that Court granted certiorari quashing an order of the respondent of the 28th day of February 2003 This order had directed the applicant and the first named Notice Party to make discovery of and produce the records and documentation referred to therein In his notice of appeal dated the 23rd March 2004 the respondent challenged specifically the finding that the applicant was entitled to invoke and had invoked Article 15 10 of the Constitution as a ground for resisting the respondent s order By notice to vary dated the 26th March 2004 the applicant broadened the scope of the issues on this appeal He sought to invoke in addition to Article 15 10 Article 15 13 of the Constitution to the same intent and challenged the learned trial judge s findings in that regard Furthermore he challenges the finding of the learned trial judge that the privilege conferred by Article 15 10 is a privilege of the House rather than of an individual member The applicant further claims that he is entitled apart from Article 15 10 to a privilege against an order such as the respondent s by reason of his status as a member of the National Parliament pursuant to Articles 15 and 16 of the Constitution The applicant furthermore claims that Article 15 10 is a self executing provision and that the learned trial judge should have so found Finally he claims that apart from the Constitution he is entitled to a common law privilege in the circumstances of this case purely in his capacity as a deputy Background The Parties 2 The applicant is a long standing member of Dáil Eireann representing the constituency of Wexford The respondent is the sole member of the Tribunal named in the title and has since June 2002 been conducting an inquiry into allegations of a very grave kind involving certain gardaí currently or formerly attached to the Donegal division 3 Eircom Ltd has only an incidental role in the matters about to be discussed and was permitted to withdraw from the hearing of this appeal on the basis that it will of course comply with any valid order for discovery or production of documents 4 The Committee on Procedures and Privileges of Dáil Eireann is a committee of the House to whom by resolution of the 6th July 2001 the power of the House contained in Article 15 10 of the Constitution was delegated No issue was taken with the validity of that delegation The Tribunal 5 The Tribunal was appointed by instrument of the Minister for Justice entitled Tribunals of Inquiry Evidence Act 1921 Establishment of Tribunal 2002 made on the 24th April 2002 Previously on the 28th March 2002 each House of the Oireachtas had passed a resolution This resolution as passed by Dáil Eireann recited the serious public concern about allegations that members of the Garda Síochána in the Donegal Division engaged in unethical and criminal behaviour and went on to note the report of Mr Shane Murphy S C in which he expressed the opinion that a Tribunal of Inquiry represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance 6 It went on to resolve that it was expedient to establish a tribunal to inquire urgently into the following definite matters of urgent public importance 7 The specific matters then set out in the resolution are mirrored in the terms of reference of the Tribunal contained in the instrument of the Minister referred to above They refer to such well known and profoundly serious matters as the death of Mr Richie Barron and the arrest and treatment of persons in custody in connection with that investigation the alleged harassment of the McBrearty family and their associates and went on to refer specifically at sub paragraph h to Allegations contained in documents received by Deputy Jim Higgins on the 25th June 2000 and information received by Deputy Brendan Howlin on the 25th June 2000 that two senior members of An Garda Síochána may have acted with impropriety 8 These allegations had had a long history prior to the resolutions of the Dáil and Seanad In the year 2000 certain of them including those relating to the death of Mr Barron and the treatment of the McBreartys were under investigation by an internal garda inquiry headed by Assistant Commissioner Carty This was often called The Carty Enquiry The information 9 On the 25th June 2000 a Sunday Mr Howlin and another public representative Mr Higgins received information both in oral and in documentary form purporting to represent confidential information from a serving Garda relating to the investigation under Assistant Commissioner Carty The documentary version is attached to this judgment as Appendix 1 The substance of this information was to the effect that the investigation might be compromised because of prior dealings between one of the members said to be under investigation and two Assistant Commissioners of An Garda Síochána including the gentleman who was conducting the inquiry The prior dealings alleged were quite remote in time and of a disreputable nature 10 These allegations were indeed as Mr Howlin himself was to say several times later on of a startling nature especially given that the investigation being conducted by Assistant Commissioner Carty related to allegations that were again to quote Mr Howlin some of the most serious ever made about public servants in the State 11 On the following day Deputy Howlin and Deputy Higgins met the then Minister for Justice to whom they repeated these allegations As a result of this Deputy Howlin was interviewed by senior gardaí including another Assistant Commissioner on the 1st July 2000 To these officers he indicated that his immediate source was a person whom he trusted and who had been a source of information to him previously in relation to the McBrearty matter Behind this source was another the serving member of An Garda Síochána who was providing the information to the immediate source He refused to identify either source He undertook to get back to his source and subsequently told the Gardaí that his informant was not willing to have his name given to the Gardái that the garda source will give evidence in court and that they should interview five named members of An Garda Síochána ranging in rank from Garda to Chief Superintendent 12 Deputy Howlin made it perfectly clear at all times that he personally had no evidence or information to substantiate the claims made by his informant In addition to the principal immediate concern alleged compromise of the Carty investigation the material which Deputy drew to the attention of the Minister and the Gardaí included concerns that every case in which a named Detective Sergeant had been involved needs rechecking that a large number of convictions were achieved by planting evidence that the named Detective Sergeant had a considerable quantity of stolen property available to him for that purpose and that the same Sergeant had been rewarded for his unlawful activities by being permitted to claim overtime and expenses which were not warranted It was alleged to be the complicity of very senior officers in this conduct which permitted the Sergeant allegedly to frustrate the Carty Inquiry It was further alleged that the Sergeant had a long written record of his own activities while stationed in Dublin which is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation Nature of these allegations 13 It must be immediately clear to anyone who has the opportunity of considering the information given to the Minister and the Gardaí by Deputy Howlin that it is of an extremely serious nature An allegation of corruption in the Gardái and the obtaining of convictions by planting evidence would themselves be matters of great seriousness But this information goes considerably further it alleges that an official Garda Inquiry conducted at the very highest level into behaviour of that sort was itself compromised by the fact that a member who is relatively junior in rank if not in experience and who was a subject of the Inquiry had information about senior officers which would prevent them from properly investigating him The information communicated by the Deputy also suggested that the named Detective Sergeant s activities were well known to a large number of members of An Garda Síochána and were a running joke in those circles If this is so it would suggest a widespread malaise within the force leading to a situation where criminal conduct by members in their official capacity is widely known but winked at 14 In light of this it is clear that Deputy Howlin was acting very properly in bringing the information which he had to the attention of the Minister and that the latter acted very properly in setting in motion the Inquiry in the course of which Deputy Howlin was interviewed on the 1st July 2000 It is quite clear that this Inquiry faced considerable difficulties because those conducting it were unaware of the identity of the apparently well placed source who had made the allegations It does not appear to have made progress in the investigation Other modes of inquiry were considered by the Authorities who apart from other considerations had to bear in mind the risk of prejudice to then pending criminal proceedings From the documents before the Court it appears that the papers held by the Garda Síochána the Garda Complaints Board and other bodies were examined on behalf of the Authorities by Mr Shane Murphy S C who reported along the lines summarised in the recitals to the resolution passed by Dáil Eireann in March 2002 It will be immediately clear that the use in this resolution of very strong language such as serious public concern about allegations that members of the Garda Síochána in the Donegal Division engaged in unethical and criminal behaviour so that these allegations constitute outstanding issues of fundamental public importance and that the matters listed at subparagraphs a j of the resolution being definite matters of urgent public importance are amply justified That these phrases are intended to apply inter alia to the information communicated by Deputy Howlin appears clear from the terms of paragraph h of the resolution the Houses of the Oireachtas specifically required that the allegations communicated by Deputy Howlin be investigated Actions of the Tribunal 15 On the 15th June 2002 the Tribunal as is now normal practice sat in public and gave a detailed explanation of the terms of reference which governed its Inquiry and which are set out in the Resolution of Dáil Eireann and the Instrument of the Minister In relation to subparagraph h the Tribunal indicated that it would approach this area of its work in the following way a Enquire into this matter generally and in as far as possible ascertain the basic facts b Fully investigate each of the allegations contained in the document to ascertain whether there is any foundation for same c Consider the investigations carried out to date in relation to the matter and generally consider whether these allegations were scrutinised with the seriousness which they merit d Attempt to ascertain if the author of the facts had any information which would justify the allegations contained therein in this regard it would be necessary to ascertain the identity of this person and seek his or her assistance for the work of the Tribunal e Attempt to ascertain the motive for sending this fax if that is relevant 16 This matter and others were then the subject of preliminary investigations by the Tribunal and lawyers and investigators appointed by it These investigations enabled the making in November 2002 of a Preliminary Opening Statement In the course of this and referring to subparagraph h of the terms of the reference Counsel for the Tribunal said the following On the 29th June 2000 the Garda Commissioner directed Assistant Commissioner Fachtna Murphy to investigate this matter our own investigators have also conducted inquiries nothing has been uncovered as a result of the investigations of this Tribunal or on perusal of the documents and statements gathered by the Murphy investigation which provides any support for the allegations contained in the document much less corroboration it does not seem unreasonable to take the view that if this is inquiry is going to be thorough it should attempt to ascertain the source of the information in order to learn from him or her at first hand either what material may be available to support the allegations or with a view to establishing that the allegations are made without a basis of support in fact for whatever reason The Murphy investigation team took a similar view Your investigators Sir also believe it is essential to interview this person to attempt to find out what he or she knows 17 On the 17th December 2002 the Tribunal wrote to Deputy Howlin s solicitors indicating that it was proposed to make an order for discovery against him The terms of the proposed order make it clear that its purpose was the identification of his sources In the course of this letter the findings set out in the opening statement and quoted above were summarised Neither then nor at any later time was issue taken with the proposition that it was essential to interview the source of the allegations if the allegations themselves were to be properly investigated 18 The 10th February 2003 was fixed for a public hearing of the Tribunal at which counsel on behalf of the Oireachtas applied for and were granted limited representation before the Tribunal in relation to the making of the proposed discovery orders Deputy Howlin was also present Both of these parties made written and oral representations as did counsel for the Tribunal Parliamentary background 19 On the 6th July 2001 Dáil Eireann passed the following resolution That whereas Article 15 10 of the Constitution provides that each House of the Oireachtas shall have power to protect its official documents and the private papers of its members Dáil Eireann resolves that the said powers hereby conferred upon the Committee on Procedure and Privileges and may be exercised by that Committee on behalf of Dáil Eireann 20 On the 6th February 2002 four days before the date of the public hearing of objections to the proposed discovery order the Committee on Procedure and Privileges of Dáil Eireann passed a resolution in the following terms That the Committee on Procedure and Privileges of Dáil Eireann Noting Article 15 of the Constitution Noting the privilege enjoyed by members of Dáil Eireann in respect of information received from members of the public Noting the assertion of privilege being made by Deputy Howlin before the Tribunal known as the Tribunal of Inquiry into complaints concerning some gardái of the Donegal Division hereby authorises the Parliamentary Legal Adviser to instruct on behalf of Dáil Eireann counsel to apply for representation at the Tribunal and if granted representation to make submissions to the Tribunal concerning the powers and privileges of Dáil Eireann and its members Determination of the Tribunal 21 On the 28th February 2003 the sole member of the Tribunal delivered his determination on the discovery issue insofar as it affected Deputy Howlin This was a relatively lengthy determination which is unnecessary to set out here it ended in the making of the order which the applicant has sought on judicial review In the course of the determination however the respondent made certain observations about the allegations communicated through Deputy Howlin as follows 3 The allegations made if correct mean that a number of persons have been wrongfully imprisoned because of convictions which were unlawfully obtained by means of planted evidence and perhaps perjury 4 The allegations purport to implicate two Assistant Commissioners and a Detective Sergeant in the commission of serious criminal offences including multiple conspiracies to pervert the course of justice 5 If the allegations are substantiated a number of persons wrongfully convicted may be afforded the opportunity to have miscarriages of justice acknowledged and if still imprisoned would be afforded an opportunity of release 22 The Tribunal also made certain findings of fact relevant to the present issues 3 Insofar as it has been possible to enquire into any of the facts contained in the allegations imparted to Deputy Howlin these inquiries have not established any factual basis for the allegations However these inquiries are not sufficiently exhaustive to satisfy the Tribunal that it is in possession of all relevant information or evidence concerning these allegations It is necessary in order to complete the investigative stage of the Tribunal s work in this regard to discover such information or evidence if any as is in the possession of the informants or those who conveyed information to the informants that could or would substantiate or tend to substantiate the allegations made or not as the case may be 4 Despite comprehensive efforts including a number of false trails it has proved impossible for the Tribunal

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  • pay during the period of their secondment to Team The learned trial Judge held there was no such entitlement and this is not an issue before this Court However the learned trial Judge ended his judgment on that issue by saying It seems appropriate having regard to the defined agenda which the Court undertook to defer to a later date any submissions the parties may wish to make particularly with regard to the work circumstances in which the present plaintiffs find themselves following their return from secondment In other words are they entitled to maintenance work which accords with their qualifications and experience or if such work is not available are they entitled to compensation or damages in lieu thereof In this regard I am thinking in particular of the assurance given to transferring craft workers by Mr O Neill s letter of 13th April 1990 in which he said In the unlikely event of Team getting into business difficulty existing employees will continue to maintain the Aer Lingus fleet as a minimum There was then a further hearing dealing with this issue in the course of which Counsel for the Respondent accepted that the Appellants were employees of the Respondent Having heard further submissions the learned trial Judge delivered his second judgment on 8th October 2002 In the course of that judgment he held that the agreement made in 1990 did not preclude the Respondent from selling off Team at some future point in time and indeed that it would have been commercial madness for the Respondent to bind its future behaviour indefinitely in such a fashion What it did mean in his view was that the Respondent would not sell off Team without the substantial agreement of the workforce and their union representatives but he held that agreement had been secured given that ninety seven per cent of the Team workers agreed to transfer to FLS Aerospace The learned trial Judge then went on to consider the rights of those who had opted to return to the Respondent His findings in this regard are set out at page 10 of his judgment as follows I conclude therefore on this issue that on returning to Aer Lingus in 1998 the claimants were at that point entitled to do so as if Team had never existed that they were then entitled to be paid the same levels of remuneration as mechanical engineers employed by Aer Lingus who had not been seconded They were further entitled in my view to have their seniority fully recognised and to be placed on the appropriate incremental scale as though they had never left Aer Lingus However I am not holding that the commitment that such workers would continue to maintain the Aer Lingus fleet was an open ended indefinite or life time commitment which placed Team workers in an altogether superior position to those working in Aer Lingus but rather that on their return and from that point onwards they should be no better off and no worse off than Aer Lingus staff engaged in maintenance and engineering work at that time the only difference being that they were entitled to such additional benefits or security as was conveyed by the term and representations contained in Mr O Neill s letter Continue in my view is not to be taken in such a volatile market as meaning indefinitely or forever It is virtually impossible to further clarify what period of time this word should be taken to include It must at a minimum mean that such work its equivalent or compensation in lieu thereof would be available for some reasonable time after Team workers sought and found relocation in Aer Lingus rather than FLS The learned trial Judge then said his ruling would help to clarify the position from 1998 to the date of the judgment but that any further or ongoing consequences were by consent a matter for another day It is his finding that work on the Respondent s fleet or its equivalent or compensation in lieu thereof would only be available for a reasonable time after relocation with the Respondent that has led to this appeal In the judgment he left over for another day what was the meaning of some reasonable time On 29th and 30th April 2003 there was a further hearing in relation to what could be considered a reasonable time Counsel for the Appellants made it quite clear at the commencement of the hearing that the Appellants were contending that the question of a reasonable time did not arise at all and indeed that the issue of a reasonable time had not been pleaded by the Respondent After hearing arguments on the point the learned trial Judge said in the course of the hearing of 29th April 2003 On this argument this morning I prefer the submissions advanced by Mr Hanratty I am going to hold that the reasonable period was from the date of return of the workers concerned from Team to Aer Lingus i e in 1998 up to the time the judgment in this matter was delivered in October 2002 i e a period of four years or whatever the relevant period is so calculated The Court then went on to deal with the amount of compensation to be awarded The Issue on this Appeal It is now accepted by the Respondent that the Appellants were at all times employees of the Respondent and that by opting to return to the Respondent after the sale of Team they were entitled to be treated as if they had never been seconded at all but had at all times remained in the employment of the Respondent and that none of their rights or entitlements would be affected by the secondment Thus the sole issue remains as to whether the Appellants rights in this regard are in some way limited in time Conclusion Counsel on behalf of the Appellants accept that on any construction of the agreement or guarantees the Appellants can be in no better position than they would have been if they had not been seconded and in no better position than any of the Respondent s maintenance and engineering employees who were not seconded but remained working for the Respondent In particular they accept that they are on just as much a risk as they ever were in relation to the vicissitudes of the airline industry They accept that should there be a need for redundancies or redeployment they would be on the same risk as if they had always remained working in the Respondent What they fear is that the limitations imposed by the concept of a reasonable time would in fact mean that at the end of the four year period they would no longer have the benefit of the agreement and guarantees and could in effect be demoted The learned trial Judge based his decision on a consideration of how long the Respondent was bound to continue to maintain their own fleet of aircraft He was obviously correct in ruling that commercially such a commitment could not have been expected to last forever However that is only one comparatively minor part of the undertakings and guarantees given to the Appellants and indeed it is not included in Part A of the final heads of agreement reached between the Irish Congress of Trade Unions and the Respondent The guarantees given in that document which are expressed to be an irrevocably legally binding form such as if Team did not exist related to the status and seniority of those being seconded to Team That document was the culmination of lengthy negotiations and the final ballot approving the setting up of Team was clearly based on the contents of that document It is interesting to note that the only reference to maintaining the Aer Lingus fleet is contained in Mr O Neill s letter of 30th April 1990 which does not appear to form part of the legally binding guarantees but rather is something which the Respondent had represented as some form of additional comfort to the workers being seconded I cannot see how it could have been the intention of the parties that matters such as seniority status working conditions rights and privileges including pension entitlements could possibly be limited in time The whole purpose of giving guarantees was to reassure all persons being seconded that they would remain in exactly the same position as if the maintenance of the fleet had never been transferred to Team This commitment could only make any sense if it was unlimited in time I would emphasise that it does not amount to giving any special privileges to the Appellants but rather puts them in the same position in which they would have been had Team never existed To limit these guarantees would in my view place the Appellants in a worse position than their colleagues who had not transferred to Team which was what the lengthy negotiations sought to avoid I would add that the Appellants are as already explained subject to any of the ordinary incidents of an employment contract in particular termination on notice in accordance with the terms of the contract dismissal on reasonable grounds and redundancy Accordingly I would allow this appeal THE SUPREME COURT 042 04 Denham J Geoghegan J Fennelly J McCracken J Macken J Between William King Garrett Madigan William Graham Dermot D Arcy Christopher Healy Brendan Baker Matt Graham Hugh Rafferty Neil Quinn John O Donnell Patrick Curry Richard P O Connor Patrick Gleeson John Doyle Liam Colgan James A McCann Christopher O Connor Patrick Foley Gerry Cummins Thomas Burke Alan Brodigan Peter J Conway Michael Dardis Michael Derham AND BY ORDER Aidan Boland Eamon Buckley John Keenan James Maher Eric Norton Vincent O Connor AND BY ORDER Richard Barber George Barker Stephen Brogan Martin Burke Thomas Burke Jim Byrne Tim Carroll Laurence Clarke Jim Doyle Brian Flood Padraic Geraghty Adrian Heron James Lewis Patrick Macken Patrick Molloy Noel Murphy Nollaig O Mahony Gerald O Sullivan John O Sullivan Nicholas Radford William Sharkey David Smith Peter Smith Matthew Walsh Brian Webberley Plaintiffs Appellants AND Aer Lingus Plc Defendant Respondent Judgment of Mr Justice McCracken delivered the 20th day of December 2005 Background Prior to 1989 the Appellants worked in the maintenance and engineering department of the Respondent in Dublin Airport At that time by far the greater part of their work was the maintenance and upkeep of the Respondent s fleet of aircraft and ground vehicles About this time the Respondent had plans to expand the maintenance and engineering department to enable it to service not only the Respondent s own aircraft but to obtain contracts to service aircraft from other airlines They determined that the most efficient way to do this would be to form a separate company within the group to be known as TEAM Aer Lingus hereinafter called Team These plans would involve the transfer of the maintenance and engineering staff from the Respondent to Team a move which was initially opposed by many of such staff and the Trades Unions representing them Ultimately after protracted negotiations and certain undertakings and guarantees having been given to the staff by the Respondent Team commenced business with most of the maintenance and engineering staff transferring at least physically to Team These proceedings are concerned with the consequences of the negotiations which took place particularly in the light of subsequent events whereby Team was ultimately sold by the Respondent to a Danish company called FLS Aerospace To understand the issues now before the Court it is necessary to detail the events leading up to the creation of Team and also the events which occurred at and after the sale of Team Negotiations on Setting up Team It is not necessary to particularise all the negotiations which took place but they were lengthy and complex The workers were naturally anxious that the position and status which they had acquired as employees of the Respondent should not be prejudiced and at the time there undoubtedly was a perception that such employment was extremely secure They were particularly anxious to protect their position should anything happen to Team The negotiations progressed through various stages and three ballots of the workers involved were held The Respondent s proposals were rejected in the first two ballots but following further representations by the Respondent the proposals were accepted in the third ballot It should be said that at all times the Respondent acknowledged that the existing staff would retain their identity and contracts of employment with the Respondent and would be seconded to the new company but would continue to enjoy full status and conditions as an employee of the Respondent However the workers were not satisfied with general statements of this nature and required more detailed information and undertakings from the Respondent The Respondent s Representations There was a large body of correspondence leading up to the taking of the final ballot which approved the Respondent s proposals The final proposals evolved gradually through this correspondence and for the purpose of this decision it is sufficient to quote from three of these documents albeit at some length On 30th April 1990 the Respondent s general manager personnel Mr John O Neill wrote to all craft workers in the following terms This letter compliments all previous correspondence on the matter All Dublin based AME s and SME s on secondment to TEAM will remain as Aer Lingus employees and will retire as Aer Lingus employees The tradesmen s agreement will continue to apply and all conditions including Aer Lingus ID cards pensions privileges rights and seniority will continue in existence as heretofore Time accumulated in TEAM will count as Aer Lingus service and if subsequently promoted the above guarantees will continue to apply New staff will be recruited under the terms of the tradesmen s agreement The conditions will be no less favourable than those applying to current employees In the unlikely event of TEAM getting into business difficulties existing employees will continue to maintain the Aer Lingus fleet as a minimum New staff will commence immediately Existing staff will not be required to second pending a joint study group resolving any outstanding problems in regard to Aer Lingus staff working in TEAM On 2nd July 1990 Mr John O Neill in a letter marked PERSONAL wrote to each of the relevant craft workers including each of the Appellants in the following terms DEVELOPMENT OF MAINTENANCE IN ENGINEERING BUSINESS Dear I refer to the establishment of TEAM Aer Lingus and the question of your present Aer Lingus status working conditions and privileges The purpose of this letter is to advise you on a personal basis that while you will be work within TEAM you will however remain a member of Aer Lingus staff and will retire as a member of Aer Lingus staff retaining full Aer Lingus retiree conditions Your rights privileges and seniority as a staff member of Aer Lingus will be continued on the same basis as apply to all other Aer Lingus staff Your present seniority will also accumulate within TEAM If promoted in the future within TEAM you will not be required to resign from Aer Lingus and you will still retain the guarantees within this letter This letter is a personal guarantee to you from Aer Lingus A final agreement was reached between the Irish Congress of Trade Unions representing the various craft unions and the Respondent which agreement was circulated to all personnel involved just before the final ballot was taken It is a somewhat unusual document in that it is divided into a part A and part B and there was some debate before this Court as to the status of the representations in part B but there is no doubt that the contents of part A were intended by all parties to constitute a legally binding agreement Part A reads as follows The company have agreed to convert their guarantees concerning your position as an Aer Lingus employee into an irrevocably legally binding form such as if Team did not exist Lawyers appointed by both parties have agreed the following heads of agreement for such a guarantee Aer Lingus has agreed to incorporate into an irrevocably binding agreement guarantees to individual employees already communicated in various documents The legal effect of these guarantees is to preserve the status of each individual employee such as if Team did not exist Lawyers acting for the ICTU and unions representing all employees affected have approved Heads of Agreement as agreed with lawyers acting for Aer Lingus Following are the Heads of Agreement which will give legal sanction to the guarantees given 1 Each such Aer Lingus employee who will work within the new maintenance company will remain a member of Aer Lingus staff 2 All working conditions rights and privileges including ID cards pension entitlements seniority and other benefits will be preserved for each Aer Lingus employee working within the new Company 3 Each such individual s seniority and service held within Aer Lingus will continue and accumulate in the new Company 4 Promotion within the new Company will not affect the guaranteed Aer Lingus status of each such individual working within the new Company 5 The agreement will provide that the guarantees given will become part of the individual s contract of employment and will be enforceable by each such individual employee 6 No change in the terms of the agreement can take place without the individual consent of each employee affected If the ballot is in favour of the proposed agreement the above Heads of Agreement will be formally drafted in a contract to be signed by Aer Lingus and by the Unions as agents of individual employees Part B then contains a number of matters in which it is stated that the company have agreed in addition one of which is The Company agrees that it

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  • in the interests of justice The complexities of a single European arrest warrant scheme in the Member States albeit that they are purporting to implement the Council Framework Decision are manifestly obvious Each Member State has taken steps to implement the European arrest warrant but in different ways The Constitutions of Member States are relevant and determinative in some instances on issues relevant to the European arrest warrant 5 Ireland In Ireland the Act of 2003 was enacted to implement the obligations arising from the State s agreement to the Council Framework Decision It is specifically stated in the long title that it is an Act to give effect to the Council Framework Decision and surrender procedures between Member States to amend the Extradition Act 1965 and certain other enactments and to provide for connected matters The Act of 2003 came into operation on the 1st January 2004 Part 2 provides for the European arrest warrant Specific references to the Council Framework Decision are made Thus pursuant to s 9 for the purposes of a Framework Decision the High Court shall be the executing judicial authority in the State Section 10 provides inter alia that where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person that person shall subject to and in accordance with the provisions of the Act of 2003 and the Council Framework Decision be arrested and surrendered to the issuing state A European arrest warrant shall as far as is practicable be in the form set out in the Annex to the Framework Decision and s 11 1 sets out what shall be specified Section 12 relates the transmission arrangements Section 14 makes provision for arrest without a warrant on the grounds of urgency and is not relevant to this case Section 15 makes provision for the situation when a person consents to a surrender and is not relevant to this case Section 16 of the Act of 2003 provides that where a person has not consented to his surrender as in this case the High Court may on such date as is fixed under s 13 make an order that such person be surrendered to such other person as is duly authorised by the issuing State to receive him her provided that inter alia a The High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued b The European arrest warrant or a facsimile or true copy has been endorsed in accordance with s 13 for execution of the warrant c Such undertakings as are required are provided to the court d The surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto Section 13 provides for the bringing of a person before the High Court and the fixing of a date The High Court may remand the person in custody or on bail and under s 13 5 b fix a date for the purpose of Section 16 being a date that falls not later than 21 days after the date of the person s arrest Section 16 provides for the making of a surrender order 16 1 Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15 9 the High Court may upon such date as is fixed under section 13 make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that a the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued b the European arrest warrant or a facsimile or true copy thereof has been endorsed in accordance with section 13 for execution of the warrant c such undertakings as are required under this Act or facsimile or true copies thereof are provided to the court d the surrender of the person is not prohibited by section 22 23 or 24 and e the surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto This is the order for surrender but it does not take effect for a further 15 days s 16 3 and 4 A person shall be surrendered not later than 10 days after this time subject to his right to make a complaint under subsection 6 or on humanitarian grounds under s 18 Section 16 5 and section 16 6 See subsection 5 and 6 However once the time limit of 10 days has passed and none of the exceptions apply the person who is not surrendered shall be released These subsections relating to time limits after the final order provide for mandatory release but they do not apply in this case as no final order has been made The Act of 2003 does not establish mandatory time limits prior to the final order for surrender in the same way as it does to the period after the final order Sections 16 10 and 11 state 10 If the High Court has not after the expiration of 60 days from the arrest of the person concerned under section 13 or 14 made an order under this section or section 15 or has decided not to make an order under this section it shall direct the Central Authority in the State to inform the issuing judicial authority and where appropriate Eurojust in relation thereto and of the reasons therefore specified in the direction and the Central Authority in the State shall comply with such direction 11 If the High Court has not after the expiration of 90 days from the arrest of the person concerned under section 13 or 14 made an order under this section or section 15 or has decided not to make an order under this section it shall direct the Central Authority in the State to inform the issuing judicial authority and where appropriate Eurojust in relation thereto and of the reason therefore specified in the direction and the Central Authority in the State shall comply with such direction Thus the Act of 2003 makes it mandatory that after 60 days from the arrest the High Court shall direct the Central Authority to inform the issuing judicial authority and where appropriate Eurojust and that the Central Authority shall comply This is a mandatory requirement of notice There is no provision for release The section does not give to an individual person the right to be released 6 Relationship between Council Framework Decisions and the National Law The relationship between Council Framework Decisions and the national law was considered in Pupino C 105 03 in a judgment of the Court Grand Chamber of 16 June 2005 This decision related to a different Framework Decision but the principle is the same The court held at paragraph 43 43 In light of all the above considerations the Court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union When applying national law the national court that is called upon to interpret it must do so as far as possible in the light of the wording of the purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34 2 b EU It was remarked however 44 It should be noted however that the obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law is limited by general principles of law particularly those of legal certainty and non retroactively It was further pointed out in paragraph 47 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision In other words the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem That principle does however require that where necessary the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision Thus the national court when applying the national law should do so as far as possible in light of the Council Framework Decision to attain the result sought This can not be done if it is contrary to the national law but the national court should consider the whole of the national law to see if it can be applied so as not to produce a result contrary to the Council Framework Decision 7 Facts The facts of this case are as follows On the 29th January 2004 a European arrest warrant was issued by Thames Magistrates Court in England by which the requesting State sought the arrest and surrender of the applicant for the purposes of conducting a criminal prosecution for the offence of murder On the 2nd February 2004 the European arrest warrant was endorsed for execution by the High Court in Dublin On the 11th February 2004 the applicant was arrested in Limerick On the 11th February 2004 the applicant was brought before the High Court and remanded in custody pursuant to s 13 5 of the Act of 2003 to the 27th February 2004 being the date fixed for the purposes of s 16 On the 27th February 2004 the application under s 16 was opened and adjourned and the applicant was remanded in custody to the 12th March 2004 On the 12th March 2004 the application was adjourned to the 18th March 2004 and the applicant was remanded in custody On the 18th March 2004 the application was adjourned to the 25th March 2004 and the applicant was remanded in custody On the 18th March 2004 a certificate was issued by District Justice Frances J McIvor of the Thames Magistrate Court in England relating to undertakings On the 25th March 2004 a resumed hearing date was fixed and the applicant was remanded in custody On the 14th May 2004 the High Court gave a reserved judgment O Caoimh J ordering that the applicant be surrendered The applicant appealed to the Supreme Court On the 24th February 2004 the applicant s appeal was heard by the Supreme Court On the 16th March 2005 the Supreme Court gave judgment and upheld the High Court order On the 14th May the applicant brought further proceedings relating to the lawfulness of his detention On the 5th day of May 2005 the High Court held that the applicant was detained in accordance with law the High Court O Sullivan J having delivered a reserved judgment in the matter on 3rd May 2005 8 Judgment of the High Court O Sullivan J held inter alia at p 14 Bearing the foregoing in mind I approach the interpretation of the Framework Decision on the basis that while a European arrest warrant must be dealt with as a matter of urgency there is nonetheless in the Framework Decision itself an acknowledgment that the fundamental rights of a requested person which include a right to challenge the legal validity of the process must be respected to use the word in recital 12 notwithstanding that this might cause delay in an instant case It is noteworthy that Article 23 which deals with time limits for the surrender of the person concerned after the final decision on the execution of the European arrest warrant has been made does provide for his release if he is still being held in custody beyond the short time limits specified save in exceptional circumstances which are identified Such a requirement for release is notably absent from Article 17 which deals with time limits and procedures before the making of the final decision My conclusion is that the parties to the Framework Decision included the time limits before the final decision to express their determination that the extradition process would be speedy and that the Member States would be kept aware of each other s standard of performance in this context The time limits specified for surrender after the final decision are in a different category namely they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with 9 Grounds of Appeal On the 6th May 2005 the applicant appealed to this Court submitting that i The High Court erred in law and in fact in determining that the applicant was in lawful custody and so erred in failing to order his release ii The High Court erred in its interpretation of the Act of 2003 and the Council Framework Decision iii The High Court erred in its conclusion that where a decision on surrender has not been taken within the stipulated time limits the detention of the applicant continued to be lawful in the absence of an express provision requiring his release iv The High Court erred in requiring that a provision for a persons release should be spelled out clearly and unambiguously rather than requiring that a provision for his continued detention should be so spelled out v The High Court erred while acknowledging the express respect afforded by the Council Framework Decision to the fundamental rights of arrested persons in that it failed to have due regard to the right to liberty vi The High Court failed to interpret properly the Act of 2003 and the Council Framework Decision and in particular erred in failing to draw a reasonable interpretation that a failure to have a decision within the stipulated time limits caused the requests to lapse vii The High Court erred in law in failing to interpret the statute in a manner favourable to the applicant against whom a penal statute was involved The appeal was heard on the 26th July 2005 Additional documents were sought together with further submissions These were furnished to the Court on the 4th October 2005 when judgment was reserved 10 Decision In essence the applicant claims that time limits established under the European arrest warrant scheme have not been met by the judicial authorities in Ireland and that as a consequence he is not in lawful custody and should be released However I am satisfied that this submission must fail and that the decision of the High Court should be affirmed The scheme established pursuant to the Council Framework Decision for a European arrest warrant is a new system of surrender of persons across European national boundaries It is a system which was proposed to simplify and cause less delay than the previous extradition arrangements between the Member States of the European Union The Council Framework Decision as set out previously mandates that the European arrest warrant be dealt with urgently This fundamental concept was transposed into the Act of 2003 subject to the precise terms of the Act and the fundamental rights of the applicant The Council Framework Decision urged strongly that the decision on the request be made within 60 days which time limit could be extended for a further 30 days The Act of 2003 reflects the aspiration that the matter be dealt with in such a time frame by its procedures and by requiring the High Court to direct the Central Authority to inform the issuing judicial authority and where appropriate Eurojust that an order has not been made within this time frame A similar mandatory requirement of the High Court exists to direct the Central Authority to inform the issuing judicial authority after a further 30 days The Act of 2003 makes provisions aspiring to have the matter dealt with urgently However the court has the duty to ensure that there are fair procedures which encompass all issues going to due process This includes such issues as enabling time to obtain undertakings from the issuing judicial authority and enabling time to appeal both of which occurred in this case Thus the hearing in the High Court was adjourned to obtain undertakings And subsequently the applicant took proceedings in the High Court and on appeal to this Court Thus the rights of the applicant have been preserved but the aspired to time limits have been exceeded In this there is no conflict between the Council Framework Decision and the Act of 2003 The expressed policy of the Council Framework Decision that European arrest warrants be addressed urgently is clearly the policy of the Act of 2003 The exhortation in the Council Framework Decision of time limits of 60 days and a further 30 days up to the making of the surrender order is a strongly worded recommendation reflected in the Act of 2003 which establishes an appropriate procedure and mandates the giving of notice if such time limits are exceeded However the process remains at all times subject to the requirement of fairness and access to the courts including the right of appeal There is no mandated time limit of 60 days or 90 days prior to the final order Consequently the applicant is not in unlawful custody It is unfortunate that it has not been possible to process the request more expeditiously However the applicant has exercised his right of access to the courts fully The applicant pursued an initial case in the High Court and then an appeal to the Supreme Court He subsequently brought a further case in the High Court and on appeal to this Court Thus he has exercised his rights to contest the matter and to appeal the decision of the High Court on two occasions The issue of the time limit after the final order has not arisen in this case as the applicant s appeal has not concluded 11 Conclusion For the reasons given I would dismiss the appeal and affirm the order of the High Court 19 THE SUPREME COURT S C No 171 of 2005 Murray C J Denham J Hardiman J Geoghegan J Fennelly J Between Kenneth Dundon Applicant Appellant and Governor of Cloverhill Prison Respondent and Minister for Justice Equality and Law Reform Notice Party Judgment delivered the 19th day of December 2005 by Denham J 1 Issues Time limits under the Council Framework Decision of 13th June 2002 hereinafter referred to as the Council Framework Decision and the European arrest warrant Act 2003 hereinafter referred to as the Act of 2003 are the issues arising on this appeal Kenneth Dundon the applicant appellant hereafter referred to as the applicant contends that he is in unlawful custody because time limits established under the European arrest warrant scheme have been breached The appeal is based on the interpretation of two documents a the Council Framework Decision and b the Act of 2003 2 A change in arrangements The Council Framework Decision and the Act of 2003 mark a change in extradition arrangements between the States of the European Union This change had been under consideration prior to the Twin Towers destruction in New York on 9 11 However as a consequence of 9 11 the process advanced more rapidly in the European Union and culminated in the Council Framework Decision Subsequently the Act of 2003 was enacted in Ireland This new scheme represents a development from the system of extradition between the States of the European Union to a European arrest warrant procedure The new scheme is representative of the growth consequent on the 1999 Tampere Summit of the concept of an Area of freedom security and justice within the European Union 3 1 Council Framework Decision The Council Framework Decision on the European arrest warrant was adopted by the Council of the European Union on the 13th June 2002 under Title VI of the Treaty of the European Union Title VI in Article 29 states the objective of providing citizens with a high level of safety within an area of freedom security and justice The means to obtain this objective include closer cooperation between judicial authorities in the European Union in accordance with the provisions of Article 31 Article 32 and Article 34 2 Article 31 a and b state Common action on judicial cooperation in criminal matters shall include a facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions b facilitating extradition between Member States Article 34 2 provides The Council shall take measures and promote cooperation using the appropriate form and procedures as set out in this Title contributing to the pursuit of the objectives of the Union To that end acting unanimously on the initiative of any Member State or of the Commission the Council may a b adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods They shall not entail direct effect Thus the Council Framework Decision does not have direct effect and is not part of the domestic law of this State It is binding on the State as to the result to be achieved It promotes common action by the States of the European Union to advance approximation of the laws in the States on specific issues It is left to the national authorities to chose the form and method of implementation While the Council Framework Decision is not per se part of the national law it is useful to consider its terms in some depths as it is the background upon which the Act of 2003 was created and it is referred to in the said Act 3 2 Recitals The Recitals of the Council Framework Decision refer to the objectives of the Decision These indicate an aspiration to simplify procedures reduce delay and advance judicial co operation within an area of freedom security and justice Thus for example the fifth recital states The objective set for the Union to become an area of freedom security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities Further the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters covering both pre sentence and final decisions within an area of freedom security and justice Mutual recognition is at the heart of this new process as the sixth recital provides The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation The high level of confidence between Member States is recognised in the tenth recital The mechanism of the European arrest warrant is based on a high level of confidence between Member States Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principle set out in Article 6 1 of the Treaty on European Union determined by the Council pursuant to Article 7 1 of the said Treaty with the consequences set out in Article 7 2 thereof The preservation of fundamental rights and national constitutional rights including due process is recognised in the twelfth recital This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union in particular Chapter VI thereof Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe on the basis of objective elements that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex race religion ethnic origin nationality language political opinions or sexual orientation or that that person s position may be prejudiced for any of these reasons This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process freedom of association freedom of the press and freedom of expression in other media 3 3 Time limits provided in Council Framework Decision The Council Framework Decision refers to time limits Thus article 17 1 states that A European arrest warrant shall be dealt with and executed as a matter of urgency The use of the word shall indicates a mandatory requirement It is mandated that the matter be dealt with urgently Article 17 2 relates to the specific position where a requested person consents to surrender and so it does not apply to this case However its terms are important in considering the new scheme as a whole It states In cases where the requested person consents to his surrender the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given The words should be are not the mandatory shall of Article 17 1 The difference in the wording means that while it is not mandatory these words urge such an approach and recommend strongly that the time limit of 10 days be met Article 17 3 relates to the position where a requested person does not consent to surrender and thus it applies to this type of case It states In other cases the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person This article continues the use of words of exhortation in relation to the time limit of 60 days It urges that the final decision be taken within a period of 60 days after the arrest Article 17 4 provides for an extension of the time limit It states Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 and 3 the executing judicial authority shall immediately inform the issuing judicial authority thereof giving the reasons for the delay In such case the time limits may be extended by a further 30 days This article provides for mandatory notification It is a requirement made of the executing judicial authority It refers to one extension of 30 days Exceptional circumstances are anticipated in Article 17 7 which provides Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article it shall inform Eurojust giving the reasons for the delay In addition a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level It is noteworthy that this article refers to exceptional circumstances where a Member State cannot observe the time limits while it is urged that the time limits be met The requirement that the Member State should inform Eurojust is clearly a mechanism to encourage compliance with the aspired time limits Also the terms of the mandatory requirement of notice to Eurojust anticipates a method of evaluation of the implementation of the Council Framework Decision Article 23 relates to time limits for the surrender of the person Article 23 1 provides that a person shall be surrendered as soon as possible on a date agreed between the authorities Article 23 2 states that he she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant However pursuant to Article 23 3 if the surrender of the requested person within the 10 days is prevented by circumstances beyond the control of the Member State the executing and issuing judicial authorities shall contact each other immediately and agree a new surrender date the surrender shall take place within 10 days of the new agreed date Article 23 4 relates to an exceptional situation and provides that surrender may exceptionally be temporarily postponed for serious humanitarian reasons e g if there are substantial grounds for believing that it would manifestly endanger the requested person s life or health The European arrest warrant shall be executed as soon as these grounds have ceased to exist These sections give a degree of leeway to the authorities in certain circumstances Article 23 5 provides however that upon expiry of the time limits referred to in paragraphs 23 2 and 23 4 if the person is still in custody he shall be released Article 23 relates to the surrender after the final decision on the execution of the warrant Such a decision is made by the Judicial Authority in Ireland the High Court or on appeal by the Supreme Court As the final decision on the applicant s appeal has not been made in this case this article does not apply to the applicant at this stage of the proceedings 4 1 National Forms and Methods Council Framework Decisions are not part of the domestic law The exercise taken previously in construing the Council Framework Decision is firstly to further understanding of the document Secondly it is a relevant factor in the interpretation of the national law Council Framework Decisions are binding on the State as to the result to be achieved and it is left to the national authorities to choose the form and method of implementation Member States have implemented this Council Framework Decision However the forms and methods used have not been identical This may be seen from a few examples 4 2 Belgium Belgian legislation has prescribed very precise time limits expressed in days and hours An unofficial translation of that legislation provides as follows Article 16 1 Within 15 days of the arrest the Council Chamber shall rule by a reasoned decision on the execution of the European arrest warrant on a report of the investigating judge and having heard the King s prosecutor and the person concerned assisted or represented by his lawyer 5 If the Council Chamber does not rule within the period stipulated in paragraph 1 the investigating judge orders the release of the person unless the public prosecution service appeals this order within 24 hours before the Court s indictment division in keeping with Article 17 Article 17 1 The person concerned and the public prosecution service can appeal the decision of the Council Chamber before the Court s indictment division The appeal must be made within 24 hours beginning from the day of the decision for the public prosecution service and for the person concerned on the day on which it is served to him 2 The appeal is made by a declaration to the clerk of the Court of First Instance and is recorded in a register opened for that purpose 4 Within 15 days of the declaration referred to under 2 the Court s indictment division rules on the appeal by a reasoned decision having heard the King s prosecutor and the person concerned assisted or represented by his lawyer The division shall make the verification stipulated in Article 16 1 2 in order to make that ruling If no decision is made within that period the person concerned is released 5 The decision on the appeal is communicated to the general prosecutor immediately and is served to the person concerned within 48 hours The act served contains the notification to the person concerned of his right to appeal in cassation and the period during which this right must be exercised Article 18 1 The decision on the appeal can be appealed in cassation by the public prosecution service and by the person concerned within a period of 24 hours beginning from the day of the decision for the public prosecution service and for the person concerned on the day on which it is served to him 2 The dossier is transmitted to the clerk of the Cour de Cassation within 24 hours as from the time of the appeal The arguments in cassation can be described wither in the act of the appeal or in a written document lodged at that time or in a memorandum that must reach the registry of the Cour de Cassation on the fifth day after the appeal in cassation at the latest 3 The Cour de Cassation rules within 15 days as from the date of appeal in cassation 4 After a ruling in cassation with referral the Court s indictment division to which the case is referred rules within 15 days as from pronouncement of the Cour de Cassation s ruling 5 If the appeal in cassation is rejected the decision of the Court s indictment division on the execution of the European arrest warrant is immediately enforceable It appears that in a Belgian case Cour de Cassation French Section 2nd Chamber 28 December 2004 No P 04 1665 F a defence has been argued that Article 16 1 of the Belgian law implementing the European arrest warrant which requires the Chambre du Conseil to decide on the execution of the European arrest warrant within 15 days after the arrest had been violated and that the procedure is thus unlawful It appears that the non respect of the time limit provided for by Article 16 1 of the Belgian law of 19 December 2003 implementing the European arrest warrant resulted in the requested person s release but did not make the execution procedure unlawful 4 3 Netherlands Legislation in the Netherlands provides for time limits as follows Article 22 3 3 Exceptionally provided reasons are given to the issuing judicial authority the court may extend the term of sixty days by a maximum of thirty days 4 If the court has still given no verdict within the period as per paragraph 3 the court may again extend the term indefinitely while setting conditions for simultaneous suspension of the detention of the requested person and notification of the issuing authority Thus while the time limits urged in the Council Framework Decision are followed with the addition that the court is given a discretion to extend the time 4 4 United Kingdom The United Kingdom in the Extradition Act 2003 c 41 makes provision for time limits It also reflects the time limits in the Council Framework Decision with the addition of power to the judge to extend time in the interests of justice Section 75 states 1 When a person arrested under a warrant issued under section 71 first appears or is brought before the appropriate judge the judge must fix a date on which the extradition hearing is to begin 2 The date fixed under subsection 1 must not be later than the end of the permitted period which is 2 months starting with the date on which the person first appears or is brought before the judge 3 If before the date fixed under subsection 1 or this subsection a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the

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  • to the making of the final decision it is entirely understandable that the parties to this decision should not have intended the immediate release of a requested person in the event that a final decision is not made by a member state within the specified period in any particular case Such a consequence would in my opinion have to be spelled out clearly and unambiguously given the primary obligation on participating member states to execute the European arrest warrant as set out in Article 1 Even assuming without explicitly so finding that Article 17 has been incorporated word for word into the Act I cannot agree that it provides that the consequence of the failure of the High Court to make a final order within the time specified therein whether 60 or 90 days is that the applicant is entitled to immediate release It is important to make clear as the High Court judge did in his judgment that the appellant in relation to his time limit argument rested his case on the Framework Decision itself and the alleged incorporation of that Framework Decision into the Act and not on the provisions of section 16 of the Act In an earlier part of his judgment the learned High Court judge also made the following observation In my opinion if section 16 were to be construed on its own the inevitable interpretation would be that it intends the release of the requested person where the High Court decides not to make an order but where it has reached no decision within 60 or 90 days the intention is not that the requested person be released but simply that the specified authorities be informed So far as the legislature is concerned therefore where an order has not been made after the specified periods there is no intention to provide for the release of the requested person I agree also with that passage though in a sense a stand alone interpretation is irrelevant I am however even more in agreement with it if it is interpreted as it should be in the light of the Framework Decision The fundamental question which both parties have been addressing in this case has at all stages been the question of whether the appellant upon the expiration of the sixty day time limit unextended was entitled ipso facto to be released I believe however that that was the wrong question The correct question to be addressed and which was in fact addressed by the learned High Court judge is whether following upon the expiration of the sixty day period unextended the duty to execute the warrant ceases If the answer to that question is in the affirmative then there can obviously be no disputing the appellant s right to release If however the duty to execute continues then there can be no right to an absolute or permanent release It may of course be open to a court to grant bail In some circumstances a court may consider that the proceedings ought to be struck out or dismissed and an order for release made on the grounds of a breach or breaches of the arrested person s fundamental rights This power of the court is not affected by the provisions of either the European Arrest Warrant Act 2003 itself or by the Council Framework Decision Indeed the twelfth recital to the Framework Decision makes this clear and it is worth quoting in full This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union in particular chapter VI thereof Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe on the basis of objective elements that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex race religion ethnic origin nationality language political opinions or sexual orientation or that that person s position may be prejudiced for any of these reasons This Framework Decision does not prevent a member state from applying its constitutional rules relating to due process freedom of association freedom of the press and freedom of expression in other media It would seem to me therefore that if there was inordinate delay prejudicial to the rights including fundamental rights of an arrested person that person might be entitled to be discharged and released But that is quite different from suggesting that by reason of the expiration of an unextended sixty day time limit there is an automatic entitlement to release I am satisfied that upon the expiration of that period the duty to execute the warrant has not come to an end but continues Accordingly it does not lead to release Article 1 paragraph 2 of the Framework Decision provides as follows Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision In accordance with the recital already quoted paragraph 3 of the same Article goes on to provide This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union If therefore as the learned trial judge believes and as I also believe the sixty day and ninety day time limits are with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases then this appeal must fail Even if I am wrong about this interpretation and that in some circumstances the time limits are to take effect in individual cases I would then be of the view that on any reasonable purposive interpretation of the Act and the Framework Decision self induced delay on the part of the arrested person must be discounted in calculating the period Otherwise in my opinion the Framework Decision in many cases all over Europe will be unworkable Delays by way of court proceedings and appeals are common to all member states and indeed delay is the wrong word as that implies some kind of blameworthiness A more accurate expression would be a lapse of time In this jurisdiction unlike most jurisdictions in the European Union there is only one appeal from the highest court of first instance In the jurisdiction of England and Wales there is an appeal to the Court of Appeal and a possible further appeal to the House of Lords In Scotland the position is similar with the Inner House of the Court of Session performing the function of the Court of Appeal In France there is the Cour d Appel and in certain circumstances a further appeal from it to the highest court Similarly in most countries in Europe All courts have recesses in the summer and at Christmas for instance It would seem to me that in any country within the European Union it is quite a likely scenario that the sixty day or indeed the ninety day time limit would be exceeded without fault on anybody s part especially if interlocutory applications or interlocutory appeals were brought as happened in this case and as might happen in any case as for instance a discovery application Such an application might go through all the court systems on appeal and inevitably these time limits would expire Unless these periods are to be discounted in making the calculation the Framework Decision is unworkable One could envisage of course a different form of Framework Decision that might have provided for a mandatory execution of the warrant within a particular period and the return of the person to the executing state in the event of a subsequent appeal by that person being successful But no such provision is contained in this Framework Decision I have already indicated that I believe that none of this arises because I am satisfied that the time limits of sixty days and ninety days have no relevance to individual rights in individual cases But I repeat that if I am wrong about this I still believe that time taken up in court proceedings instigated by the arrested person must as a matter of purposive interpretation be discounted The learned High Court judge in his judgment has referred both to section 16 7 of the Act and to Article 23 5 of the Framework Decision Both of these provisions refer to the time limit for surrender of a person who has not consented to his or her surrender or has withdrawn such consent If the High Court decided not to make an order for surrender the arrested person must be released unless serving sentence for some other reason If it had been the intention in the Framework Decision that such would be the consequence of the expiration of the sixty day or ninety day time limits I cannot imagine why a similar express provision for release would not have been contained in the decision For all these reasons I would dismiss the appeal Dundon v Govr of Cloverhill Prison 13 THE SUPREME COURT Record No 171 05 Murray C J Denham J Hardiman J Geoghegan J Fennelly J IN THE MATTER OF ARTICLE 40 4 OF THE CONSTITUTION AND OF THE HABEAS CORPUS ACT 1782 BETWEEN KENNETH DUNDON Applicant Appellant and GOVERNOR OF CLOVERHILL PRISON Respondent and MINISTER FOR JUSTICE EQUALITY AND LAW REFORM Notice Party JUDGMENT of Mr Justice Geoghegan delivered 19th December 2005 This appeal has thrown up some very serious issues relating to the effectiveness and enforcement of the European arrest warrant The appeal in point of form is from an order of the High Court O Sullivan J refusing an application under Article 40 4 of the Constitution the court having been satisfied that the appellant was detained in accordance with law In both courts the argument of the appellant has been that a relevant time limit in the procedures under the European Arrest Warrant Act 2003 has long ago elapsed and that although the Act does not expressly say so it must automatically follow that the appellant upon expiration of the relevant period is entitled to be released and that that necessary consequence is not in any way removed or diminished by the fact that the expiration of the time limit resulted from proceedings and appeals instigated by the appellant himself Although the said Act of 2003 contains other time limits and expressly provides for release upon their expiration no such provision is contained in respect of the particular time limit relevant to this case nor does the Act make clear that a court in dealing with any particular case is bound by such time limit The obligation to release is claimed to arise by inference in particular having regard to the terms of section 10 of the Act which reads as follows Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person a Against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates or b that person shall subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state As I will be explaining the time limit on which the appellant relies is in a particular context contained in the Act and that context is the Framework Decision which is defined in the Act as meaning Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States The Irish language and English language versions of the text of the Framework Decision are contained in Part A and Part B respectively of the Schedule to the Act The logic of the appellant s heavy reliance on the inclusion of the words and the Framework Decision in section 10 must be that if those words had been omitted the legal consequences might be quite different and the argument of the state much stronger For reasons which will emerge in the course of this judgment I find myself unimpressed by this line of argument The difficulties which undoubtedly arise in this case are not caused or at least not primarily caused by any hasty or faulty draftsmanship in relation to the Act of 2003 That Act is not happily drafted but the primary question at issue in this case derives essentially from the Framework Decision itself The issues relating to the interpretation of the time limit and the consequences of non compliance in this case could arise in the courts of any member state of the European Union In my opinion there is nothing peculiar to either Irish legislation or the Irish courts system which confines the problem to Ireland I will now turn to the factual background to this case before resuming any discussion of the legal issues involved A European arrest warrant against the appellant was issued by a District Judge Magistrates Courts at Thames Magistrates Court in London on the 29th January 2004 The warrant requested that the appellant be arrested and surrendered for the purposes of conducting a criminal prosecution sentencing following conviction or executing a custodial sentence or detention order The relevant alleged offence was murder Under the provisions of section 13 of the European Arrest Warrant Act 2003 The Central Authority in the State defined as the Minister for Justice Equality and Law Reform must apply to the High Court for endorsement of the warrant This was done and the warrant was duly endorsed for execution by the High Court on the 2nd February 2004 On the 11th February 2004 the appellant was duly arrested in Limerick and on the same day brought before the High Court in Dublin and remanded in custody pursuant to section 13 5 to the 27th February 2004 being the date fixed for the purposes of section 16 of the Act It is important to pause here and explain these two statutory provisions in so far as they are relevant to this case Under the provisions of section 13 5 a person arrested under a European arrest warrant shall as soon as may be after his or her arrest be brought before the High Court and the High Court if satisfied as to identity must remand the person arrested either in custody or on bail must fix a date for the purpose of section 16 being a date that falls not later than twenty one days after the date of the person s arrest and must then inform the arrested person of certain rights which are set out in the subsection To understand the significance of the reference to section 16 I think it useful to cite at this stage the opening words of subsection 1 of that section These read as follows 1 Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15 9 the High Court may upon such date as is fixed under section 13 make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her provided that The subsection then sets out five conditions including a condition that the surrender of the person is not prohibited by Part III or the Framework Decision including the recitals thereto The important point which I want to signpost at this stage is that a date for the purpose of section 16 as provided for in section 13 is not just a date of hearing It is a date of decision Section 16 1 expressly contemplates that on the actual date fixed under section 13 the High Court makes the order directing that the person be surrendered etc Returning to the chronology no decision was in fact made on the 27th February 2004 the date fixed for the purposes of section 16 Instead the application was adjourned to the 12th March 2004 was further adjourned on that date to the 18th March 2004 was again adjourned on the 18th March to the 25th March 2004 and finally on that date was yet again adjourned to the 7th May 2004 The orders made on each of these dates included continuing orders for remand in custody Apparently the reason for the several adjournments was because certain undertakings required by the Act were not before the High Court These undertakings were certified and transmitted from Thames Magistrates Court on the 18th March 2004 Arguments were made on behalf of the appellant that these undertakings did not comply with the Act and at that time the High Court Ó Caoimh J having heard the submissions reserved judgment until the 14th May 2004 while at the same time continuing the remand in custody On the 14th May 2004 the High Court decided that the undertakings did comply with the Act and the surrender of the appellant under section 16 was duly ordered The appellant was again remanded in custody The appellant appealed that decision but on the 16th March 2005 the Supreme Court dismissed the appeal and affirmed the order of the High Court On the same day an application was made to the High Court O Sullivan J for this inquiry under Article 40 In his reserved judgment in the High Court O Sullivan J mentions that counsel had informed him that mention was made in the course of the hearing before the Supreme Court that a further legal challenge would be mounted in relation to time limits and that it was indicated by the Supreme Court that that was a matter for another day Accordingly that issue had to be considered

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  • of Fundamental Rights of the European Union The possibility of refusal to surrender where there is reason to believe that the warrant is issued in pursuit of discrimination on a number of listed impermissible grounds The constitutional rules of a Member State relating to due process freedom of association freedom of the press and freedom of expression Refusal to surrender based on risk of subjection to death penalty torture or other inhuman or degrading treatment or punishment A difficult question of interpretation of the Framework Decision might arise concerning reliance by a national court on such of these provisions as is merely declaratory and not reflected in Article 1 3 As already stated the Court of Justice has in the case of Pupino cited above held that national courts are bound to interpret rules of national law so far as possible in the light of the wording and purpose of the Framework Decision This interpretative obligation is not affected by the absence in the case of Ireland of a power to refer questions for preliminary ruling to the Court of Justice Article 35 4 ensures that Member States who have not made a declaration may nonetheless participate in proceedings on references from the courts of other Member States Article 35 7 gives the Court of Justice jurisdiction to interpret the Framework Decisions in disputes between any Member States This Court is required to interpret and apply the Act of the Oireachtas which implements the Framework Decision It is notable in this respect that section 16 1 e envisages that a person will be surrendered provided that inter alia the surrender of the person is not prohibited by Part 3 or the Framework Decision including the recitals thereto Emphasis added Section 37 which is in Part 3 of the Act prohibits any surrender which would be incompatible with rights variously based on the European Convention on Human Rights or its Protocols and most importantly that it would constitute a contravention of the Constitution Insofar as the statutorily permitted grounds of refusal to surrender go beyond the terms of Article 1 3 of the Framework Decision but are covered by its recitals they are nonetheless expressly invoked by section 16 1 e of the Act Furthermore the Act prohibits any surrender which would contravene any provision of the Constitution It would not be possible by reference to the obligation to interpret in conformity with the Framework Decision to ignore these provisions such an interpretation would be contra legem These courts are bound to apply provisions of Acts of the Oireachtas The Framework Decision does not have direct effect Where a provision of an Act of the Oireachtas conflicts directly with a provision of a Framework Decision this Court must give preference to the former To do otherwise would to cite the language of the Court of Justice in Pupino be contra legem The precise contours and limits of the rights which can be invoked under the Act will have to be explored as cases arise I am merely concerned to show that while the sixty day period does not confer protection on individuals there are other features of the Framework Decision at least as that measure is implemented in Irish law upon which reliance may be placed by individuals in appropriate cases 8 THE SUPREME COURT Murray C J Denham J Hardiman J Geoghegan J Fennelly J IN THE MATTER OF ARTICLE 40 4 OF THE CONSTITUTION AND OF THE HABEAS CORPUS ACT 1782 BETWEEN KENNETH DUNDON Applicant Appellant and GOVERNOR OF CLOVERHILL PRISON Respondent and MINISTER FOR JUSTICE EQUALITY AND LAW REFORM Notice Party JUDGMENT of Mr Justice Fennelly delivered the 19th day of December 2005 The Court is agreed that this appeal should be dismissed I wish to explain why I agree with the reasoning underlying the judgment of Geoghegan J I also wish to demonstrate that inability to obtain immediate release upon expiry of the sixty day period specified in the Framework Decision does not by any means signify that an arrested person is unable to invoke full and appropriate protection of personal and human including constitutional rights which it is the duty of these courts to vindicate I agree specifically with the judgment of Geoghegan J that the Appellant is not entitled to be released by reason of the failure of the Court to order his surrender to the issuing state within the sixty day period mentioned in the European Arrest Warrant Act 2003 and the Framework Decision I reach this conclusion by an interpretation of the Act of 2003 in the light of the Framework Decision It is clear as Geoghegan J points out in his judgment that subsections 10 and 11 of section 16 of the 2003 Act are intended to be implementations of Article 17 of the Framework Decision It is a well established principle of European Community law that the courts of the Member States are under an obligation when interpreting any national law introduced for the purposes of implementing a directive to interpret the national law in the light of the wording and purpose of the directive in order to achieve the result to be achieved Case 14 83 Von Colson and Kamann v Land Nordrein Westfalen 1984 E C R 1891 paragraph 26 The Court of Justice states that this principle may apply to national laws whether passed before or after the relevant directive Case C 106 89 Marleasing 1990 ECR I 4135 paragraph 8 The stated justification for this principle is a combined reading of Article 249 formerly Article 189 of the Treaty Establishing the European Community EC Treaty under which directives are binding on Member States as to the result to be achieved and Article 10 formerly Article 5 of the EC Treaty under which Member States are under a duty to take all appropriate measures whether general or particular to ensure fulfilment of the obligations arising under this Treaty or resulting from actions of the institutions of the Community

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  • on the say I would be slow to hold that an inquisitorial procedure whose verdict cannot impose civil or criminal liability of any sort on any person requires the full panoply of natural justice requirements of disclosure in advance of the hearing to be applied to it as would be the case for example in a criminal trial He also went on however to state that he did not have to decide that issue in the case before him He rejected the applicant s claim on the basis that that it was not entitled in any event to the exercise of the discretion of the court in its favour The dictum of Kelly J is nonetheless a useful guide and I agree with it The guiding criteria for the decision on this appeal can now be considered It is necessary to consider firstly the nature of an inquest and the role of the Coroner Secondly it is necessary to consider the status and rights of a person such as the Appellant I must repeat that the inquest is an inquisitorial proceeding There is neither prosecutor nor defendant neither plaintiff nor defendant There is neither indictment nor statement of claim There are no parties and nobody is obliged to take a position or give notice of a position as to the how when and where of the death Furthermore the inquest is confined to finding facts and is precluded from expressing any views in verdict or rider about innocence or guilt of any person It is on the other hand necessary to bear in mind the qualification of Keane CJ quoted above that the inquest may properly investigate and consider the surrounding circumstances of the death whether or not the facts explored may in another forum ultimately be relevant to issues of civil or criminal liability Facts themselves are not entirely neutral They are often pregnant with implications A pathologist s report while entirely scientific in its approach may give strong pointers either in favour of accident or in the direction of crime depending on the medical findings It is in no way inconsistent with the inquisitorial character of an inquest that persons with a legitimate interest should propound a version of the facts which accords with those interests One may wish to seek to establish facts tending to deflect blame one may wish to pursue a version which tends to suggest that the death occurred other than due to mere accident or natural causes one may simply wish to have a verdict which is neutral as regards any such considerations All of these respective considerations are legitimate It follows that persons represented at an inquest are entitled to an appropriate level of fair procedures They are entitled to be present to call witnesses and to cross examine But all of this is subject to the overriding consideration that they are assisting in an inquiry into the facts and are not either responding to or making a charge They are subject to the directions of the Coroner who is entitled to conduct the hearing in his discretion while respecting the legitimate interest of interested persons to pursue lines of inquiry The extent to which persons are entitled to access to materials in advance depends on the circumstances of the case As Kelly J stated the right to fair procedures does not exist in a vacuum The Coroner has a wide discretion as to how to conduct an inquest a discretion which extends to the provision of material in advance The governing criterion is whether the party seeking the material can show that he or she will be prejudiced in participation in the inquest in its absence A party such as the Appellant is emphatically not entitled to an order for general discovery as in civil litigation or as in Nolan v Irish Land Commission To quote Costello J in that case at page 30 of the judgment Domestic and administrative tribunals take many forms and determine many different kinds of issues no hard and fast rules can be laid down as to what the requirements of natural justice will be in every matter before the many different types of tribunal At a later point at page 33 he said In the absence of discovery and inspection will the plaintiff have an adequate opportunity to answer the case made against him at the hearing before the lay commissioners I have come to the conclusion that he will not The extent of the obligation of compliance with the rules of natural justice will depend firstly on the nature of the judicial or administrative function being performed and the facts and circumstances of the individual case A Coroner s inquest does not involve the preferment of any charge or the making of any claim I agree with Kelly J that it does not call for the application of the full panoply of natural justice requirements I consider that it is necessary to consider the particular case according to its own circumstances In the present case the Coroner based his refusal of access to the unsworn depositions on essentially two bases They have no standing until sworn Their release would tend the inquest into an adversarial hearing It is of course true that unsworn and unsigned statements have no probative value They are no evidence of their contents until verified in some way On the other hand it seems clear at least by implication that the statements in the present case represent at least the current understanding of the Coroner as to the evidence that will be given by the persons who have made them For that reason they are capable of performing the important function of enabling a person such as the Appellant to be informed of the evidence concerning the cause of death which she requires to investigate If it had been the case that the Appellant had had access to the statements made by witnesses to the Gardaí the position might well have been otherwise I would not support the granting of access to further statements merely to assist in establishing inconsistencies Indeed insofar as the representatives of the Appellant seek to use these documents for the purpose of cross examination as to credit when they had not previously been verified the Coroner may well be entitled in his discretion to disallow or limit such procedures Insofar as the Coroner complains of the possibility of the inquest becoming adversarial I do not believe that is a good or sufficient reason in the context of this case for disallowing access For reasons already given the Appellant is entitled to have reasonable knowledge of the evidence that is likely to be given In this case the appellant has expressed to the coroner a specific concern as to how the death of the deceased occurred including whether an injury sustained by the deceased was sustained as a result of a fall or otherwise No question arises as to whether these concerns are well founded or misconceived That is a matter for the inquest within the parameters of its functions But she has raised an issue as to how death occurred having demonstrated in a reasoned fashion that she has such a concern In these circumstances her ability to address that issue at the inquest could be unduly prejudiced by the refusal to provide copies of the documents She is however entitled to use that evidence only for the purposes of the fact finding exercise which is the function of the inquest To the extent that she or her representatives exceed that purpose the Coroner will be entitled in his discretion to exercise control over it I fully accept that the Coroner has discretion as to whether to permit access to documents in advance I believe he has erred in his exercise of that discretion in the particular circumstances of the present case His first error was to confuse the probative value of unsworn depositions with their capacity to furnish useful information as to the evidence likely to be given His second was to treat as necessarily adversarial a request for simple information For the same reasons I believe the learned High Court judge erred in ruling as he did I would therefore be in favour of granting a declaration to the effect that the Appellant should be provided with copies of any statements of proposed witnesses in the possession of the Coroner I would limit the relief to that I accept that the Coroner has a discretion to decline to disclose sensitive material such as photographs of the body In the present case I do not think he has been shown to have erred in the exercise of his discretion in that respect I would add that the Coroner would be entitled to impose appropriate conditions of confidentiality on a person being granted access to such documents Whether that is necessary is a matter for him In the light of this conclusion it is not necessary to consider the Appellant s arguments based on the European Convention of Human Rights I would allow the appeal and would set aside the order of the High Court to the extent indicated The court should hear counsel as to the appropriate form of the order 15 THE SUPREME COURT Record No 224 04 Murray C J Denham J Fennelly J BETWEEN NUALA RAMSEYER Applicant Appellant and BRIAN MAHON Acting Coroner for the County of Offaly Respondent Respondent JUDGMENT delivered by MR Justice Fennelly on the 6th day of December 2005 The Respondent hereinafter the Coroner is the Acting Coroner for County Offaly The Appellant is the sister of James Goonan deceased who died on 11th March 2002 She appears in these proceedings as the next of kin of the deceased and her right as such to participate in the inquest to be held by the Coroner is not disputed She claims however that the Coroner by denying her access to certain documents proposes to conduct the inquest in a manner unfair to her interests The present appeal is taken against the judgment of Murphy J in who dismissed the Appellant s application for Judicial Review of certain decisions of the Coroner The nature of the dispute between the Appellant and the Coroner emerges from correspondence from 21st May 2002 to 16th January 2003 between the latter and the solicitors for the former To begin with the solicitors asked for the post mortem report but the Coroner had not yet decided to hold an inquest and had not received the post mortem report It was until 8th July 2002 that the Coroner wrote stating that he had decided to hold an inquest The Appellant s solicitors wrote on 11th July requesting copies of all information and a copy of the post mortem report The Coroner replied that the information he had received was a report from An Garda Síochána that the deceased met his death from causes other than natural causes He said that the post mortem report was presented to the Coroner as a draft deposition for the inquest and that it is not normally released to anyone until it has been given in evidence and signed at the Inquest The solicitors on 17th July asked for copies of the Garda Síochána report and the Post Mortem report The Coroner replied on 18th July that he receives presumably meaning that he normally receives a verbal report from a Garda usually at the scene of the accident but that in addition the Garda issues a brief report to the Coroner in the form of a form C 71 and that he did not have a garda report as such In the same letter the Coroner invited the Appellant to consider making a statement an invitation which she declined stating that she had no information as to the cause of death Following some further correspondence and after the date of the inquest had been fixed for 21st October 2002 the solicitors for the Appellant wrote on 16th October 2002 expressing concern at the fact that their requests for information had been refused This letter contained the following which forms the essential basis of the Appellant s justification of the need for the information You are aware that we have made a number of requests to you for information concerning the death of our client s brother James Goonan but were refused Our client is therefore unaware of what witnesses will be before the inquest or what evidence they will give It is also unclear as a consequence of this whether the witnesses whom you propose to call will represent a complete list of those who are in a position to assist the inquest In addition and of crucial importance to the circumstances of the death of James Goonan no medical evidence has been furnished explaining the cause of death This is a matter our client raised with us at the outset and that we specifically requested of you Our client cannot avail herself of independent advice on any medical evidence in the case as it has not been made available Our client is most anxious to avail herself of her entitlement to participate fully in the inquest as a properly interested person and to learn as much as possible about the circumstances surrounding the death of her brother It is therefore vital that our client be afforded copies of all statements or draft depositions made by potential witnesses copies of all medical reports to do with the death of James Goonan and any material in your possession that is relevant to the death of James Goonan This letter written a mere five days before the intended hearing emphasised the urgency of the request and reserved the right to apply for an adjournment The Coroner responded on 16th October by stating that he was exercising his discretion by furnishing the statement of the State Pathologist being the only technical report furnished to me He enclosed a copy of the report of the State Pathologist Dr Marie Cassidy dated 3rd July 2002 This gave the cause of death as being haemorrhage and shock from laceration to the head and cited alcohol and heart disease as contributory factors The report discussed either an assault or a fall as possible causes but appeared to favour the latter The solicitors replied on 18th October reiterating their request for the other information but also stating that the Appellant was severely prejudiced so that in its absence she had no confidence in the proposed inquest and that neither she nor other members of her family would attend Furthermore the solicitors would seek Judicial Review of the Coroner s decision In the event for reasons unconnected with the present dispute the Coroner was unable to proceed with the inquest on 21st October It was adjourned In further correspondence the Coroner took the position that the draft depositions could only be released when they have been sworn by the deponents which occurs at the inquest itself Subsequently the date for the inquest was fixed anew for 27th January 2003 On 23rd January 2003 the Appellant obtained leave in the High Court to seek Judicial Review of the decision of the Coroner not to release the draft depositions In the Judicial Review the Appellant seeks a number of declarations However the essence of the case is that the Coroner is acting in breach of his obligation to respect fair procedures by refusing to release the draft depositions It is fair to say that the Appellant although she mentions a number of factual matters of concern in her affidavit does not claim to be in possession of any concrete information concerning the circumstances of the death of the deceased She says that there has been a Garda investigation and that persons have been interviewed and asked to make statements in connection with the death She says that these statements may show that there is another side to the story that might support the non accidental death theory The essence of her case is as set out in the solicitors letter of 16th October quoted above She is concerned that her brother died from what the Garda Síochána described as causes other than natural causes She does not necessarily accept the conclusion of the State Pathologist and wishes to know in advance of the inquest what other evidence it is intended to call The Coroner in his affidavit in response made essentially three points 1 The draft depositions remain unsigned and unsworn up to the time of the inquest and have no standing until that time so that in the absence of countervailing considerations he should exercise his discretion by not releasing them 2 An inquest is inquisitorial in nature the Appellant by seeking to investigate what she calls both sides of the story see references to her affidavit is turning it into an adversarial proceeding 3 Insofar as the Appellant is seeking information other than the draft depositions this might involve disclosure of sensitive information such as scene of death and clinical photographs which the Coroner considers should be kept under his control until the inquest Murphy J in the High Court dismissed the application for Judicial Review He considered that the Appellant was seeking to expand the role of the Coroner beyond the statutory requirement of section 30 of the Coroners Act 1962 He emphasised that there is no lis inter partes unlike the situation in Nolan v Irish Land Commission 1981 I R 23 upon which the Appellant relied He considered that the release of documents particularly the depositions of non expert witnesses might turn the inquest into adversarial litigation The Appellant has appealed against the decision of Murphy J Mr Gerard Hogan Senior Counsel for the Appellant presented a two faceted argument at the hearing of the appeal The first head of the argument is based on the European Convention of Human Rights Act 2003 While accepting that

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  • the legislation on behalf of the Government and the people of Ireland The private interest of VHI is not one which needs to be heard in order to decide upon the constitutionality of the legislation or the EU law challenge The court referred to the provisions of Order 84 Rule 22 2 of the Rules of the Superior Courts It had been submitted on behalf of VHI that VHI was directly affected by the remaining claims in the proceedings and that it should therefore remain a Notice Party However in addressing that point the court appeared to take the view that the proceedings were no longer judicial review proceedings and that the VHI did not come within the provisions of Order 84 but rather that VHI came within the provisions of Order 15 of the Superior Court Rules but failed to satisfy the requirements of the latter The court thus decided to make an order directing that the remainder of the action proceed as between BUPA and Ireland and the Attorney General only Since the date of the judgment of the High Court a number of significant events have taken place Firstly further evidence has been delivered on behalf of BUPA in the proceedings This consists of affidavits of Martin O Rourke the Chief Executive of BUPA Ireland Dr Christian Kobolt an economist and Mr Robert Parke an actuary The affidavits of Mr O Rourke and Mr Parke each refer extensively to the alleged attributes and actions on the part of VHI in support of the claims made by BUPA in the proceedings Moreover the evidence of Dr Kobolt comprises expert economic evidence which BUPA relies upon to contend that the Scheme is inconsistent with the purposes of the policy of the 1994 Act and infringes the EC Treaty Dr Kobolt in his report refers to the key attributes and conduct of VHI and the effect of that conduct He produces statistical data relating to VHI s business A great deal of the report is alleged to contrast the positions and conduct of what Dr Kobolt refers to as the incumbent or monopolist health insurer on the one hand and any new entrant to the Irish private insurance market on the other Much of what Dr Kobolt says in his report with regard to VHI s operations and how it does its business is disputed by the VHI VHI apprehends that Dr Kobolt s evidence will be directed to establishing that the Scheme is not necessary and or that it is a restriction in competition It thus contends that the court should have available to it all relevant evidence with regard to the market analysis which will form an integral part of the case It is important to point out that by agreement between the parties this proposed evidence has been served on VHI and VHI has responded to it in the interim without prejudice to the outcome of this appeal and so as to avoid the trial of the proceedings being delayed in the event that the appeal succeeds More significantly under the 1994 Act and the Scheme the HIA is obliged to consider on a half yearly basis whether or not it is appropriate for it to recommend to the Minister whether Risk Equalisation payments should commence In accordance with those obligations the HIA did on 12 September 2005 express a further provisional recommendation to the Minister that the Minister should order the commencement of Risk Equalisation payments under the Scheme The HIA as already noted made its substantive recommendation in favour of commencement to the Minister on 28 October 2005 It is not in dispute that if the Minister accepts the further recommendation the greater part of any Risk Equalisation Payments ordered by the Minister will require to be paid to VHI On this basis VHI contends it has an ongoing interest in the 1994 Act and in upholding the Scheme and that that interest is not and should not be dependent upon whether a recommendation is current or on whether the Minister accepts or refuses to accept any particular recommendation of the HIA Decision Given that the court at the conclusion of the hearing herein directed that the appeal be allowed and that VHI be rejoined as a Notice Party in the proceedings the remainder of this judgment is confined to an outline of the reasons for the court s decision Firstly it is clear beyond question that the present proceedings have at all times been judicial review proceedings and continue now as such As noted above Points of Claim rather than a Statement of Claim were delivered pursuant to the court s directions and Points of Defence as is appropriate to judicial review proceedings were filed in reply by the State respondents Indeed the State respondents objected strongly to the applicant s attempts to convert the proceedings from judicial review to a plenary hearing not least because it was apprehended that more challenges might be made in respect of any further recommendations of the HIA Order 84 Rule 22 2 of the Rules of the Superior Courts provides that The Notice of Motion or summons must be served on all persons directly affected Order 84 Rule 22 6 provides that If on the hearing of the motion or summons the court is of opinion that any person who ought whether under this rule or otherwise to have been served has not been served the court may adjourn the hearing on such terms if any as it may direct in order that the Notice or Summons may be served on that person Order 84 Rule 26 1 provides that On the hearing of any motion or summons under Rule 22 any person who desires to be heard in opposition to the motion or summons and appears to the court to be a proper person to be heard shall be heard notwithstanding that he has not been served with Notice of the Motion or the summons In O Keeffe v An Bord Pleanála 1993 1 I R 39 the Supreme Court granted an application to a party to be added to proceedings for the purposes of an appeal before the court concluding that in the interests of justice it was necessary that Radio Tara who would be very clearly affected by the result of the appeal should be added as a party to it In the course of his judgment Finlay C J at p 78 stated as follows If application is made for liberty to issue proceedings for judicial review and the claim includes one for certiorari to quash the decision of a court or of an administrative decision making authority the applicant must seek to add as a party any person whose rights would be affected by the avoidance of the decision impugned If liberty is granted the court should except for special reasons ordinarily add such person as a party A similar view was taken by this court in Spin Communications T A Storm F M v Independent Radio and Television Commission unreported Supreme Court 14 April 2000 In that case Keane C J stated as follows This is a case in which the notice party as indeed the High Court judge accepted is a party with a vital interest in the outcome of the matter As Finlay C J said in the O Keeffe v An Bord Pleanála case where you have a party such as the Notice Party in the present case who is vitally interested in the outcome of the proceedings they must be joined as a party and will be joined by the court if the applicant does not join them In those circumstances it seems to me that once the notice party is there once he is in the proceedings protecting his interests he may find himself in precisely the same position as the respondent He may find himself in the position that he has been there of necessity to protect his interests to advance arguments that may not have been advanced by the IRTC and to have had the benefit of his own counsel and solicitor to protect his interests It would be quite unjust that he should have to pay his costs because the applicant company has no assets where he has been brought there as a necessary party These cases demonstrate that where a party has a vital interest in the outcome of the matter or is vitally interested in the outcome of the proceedings or would be very clearly affected by the result of the proceedings it is appropriate for that party to be a notice party in the proceedings While it is true as argued by counsel for BUPA that a challenge to legislation per se is a matter of public law affecting the public at large and that a private citizen normally will not be joined in proceedings where the Attorney General seeks to uphold the constitutionality of the legislation in question a very different situation may be said to exist when as in the present case a particular party would be uniquely adversely affected if the application to strike down the Act and Scheme were to be successful In this regard counsel for the Minister has pointed out that it is by no means unusual for third parties to be heard where the issue is the alleged unconstitutionality of legislation Thus for example in Buckley v Attorney General 1950 I R 67 the personal representative of the surviving trustees was a defendant Likewise in Blake v Attorney General 1982 I R 117 the tenants of one of the defendants were represented by counsel and argued the case before the High Court Again in O B v S 1984 I R 316 where the constitutionality of certain provisions of the Succession Act 1965 were under challenge both the testator and the offspring appeared and argued the constitutional point Counsel for the Minister suggested therefore that it may be said there is a practice that at least a third party who stands immediately affected by the outcome of a constitutional challenge is entitled to appear and be heard in such proceedings In the instant case it may be genuinely said that the abolition of the Scheme would immediately impact the legal environment in which VHI is required to operate and would have very significant consequences for how VHI does its business in the future having regard in particular to its statutory obligations to maintain reserves Furthermore very serious allegations are made by BUPA in its Points of Claim to suggest that if Risk Equalisation payments are commenced under the Scheme VHI will be thereby enabled to abuse its dominant position in the Irish market In the course of the hearing before us Mr Gallagher on behalf of VHI submitted we believe correctly that a detailed market analysis will in this context form an integral part of the upcoming hearing Indeed the exchange of evidence and other materials which has taken place since the hearing in the High Court fully supports that proposition It is incontrovertible that VHI is in a unique position to contribute to that debate and is in the words of its own solicitor likely to be uniquely adversely affected if the applicant s claims which go beyond a mere challenge to the constitutionality of the legislation are successful The proceedings will inevitably involve an examination of the nature of Risk Equalisation the competitiveness of the market the nature of community rated markets and the issue of risk selection The role of VHI in that market and the nature of its behaviour in the market will be central issues It follows that VHI has the greatest possible interest and need to express its views on matters which go to the heart of the case being made by BUPA Any suggestion that VHI is likely to abuse such dominance with the activation of Risk Equalisation makes it all the more important that the views and input of the VHI in this case would be available to the court While it is true to say that the proceedings as presently constituted are shorn of any challenge to the first recommendation from HIA to implement Risk Equalisation recent days have brought news of a further recommendation from HIA which confirms our view that the original status quo wherein VHI was joined to the proceedings without demur by BUPA has been restored While Mr Collins on behalf of BUPA stated in court that his clients had no present plans to challenge that new recommendation preferring instead to challenge the legislation it is impossible to avoid the conclusion that there is a certain inconsistency in BUPA s position between then and now in relation to VHI s participation in the proceedings In the course of argument it was also suggested by counsel for VHI that the learned High Court judge had applied the wrong test in deciding the issue of joinder or non joinder by reference to Order 15 of the Rules of the Superior Courts Order 15 Rule 13 provides No cause or matter shall be defeated by reason of the mis joinder or non joinder or parties and the court may in every case or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it The court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the court to be just order that the names of any parties improperly joined whether as plaintiffs or as defendants be struck out and that the names of any parties whether plaintiffs or defendants who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter be added It does seem from a reading of the judgment of the High Court that Peart J took the view that all issues in the case could be dealt with by the High Court effectually and completely without the involvement of VHI Considerable importance in this respect was attached by the learned High Court judge to the decision of this court in Barlow v Fanning 2002 2 I R 593 In that case the plaintiffs had instituted proceedings against two defendants but in due course served Notice of Discontinuance in respect of the first named defendant That defendant applied under Order 15 to be rejoined to the proceedings on the basis that he feared his reputation might be impugned in the course of the hearing against the second named defendant and he wished to protect himself in that regard The court held that a person whose good name and reputation might be affected by the outcome of a case was not automatically entitled to be joined as a defendant if his presence was not required by the court for the effectual and complete adjudication of the issues to be determined The court also approved the reasoning of Lynch J in Fincoriz S A S Di Bruno Tassin Din e C v Ansbacher Co Ltd Unreported High Court Lynch J 20th April 1987 that there must be exceptional circumstances before a person could be joined as a defendant against the wishes of a plaintiff Quite apart from the fact that this court believes that the test in Barlow Fanning was not the correct test to apply in this particular case the court feels nonetheless that the facts of the present case are such as to bring it within the principles laid down in that case That is to say this court is strongly of the view that this case does involve exceptional circumstances and that the continued presence of VHI in the proceedings is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter The court has reached this conclusion having regard in particular to the matters alleged against VHI or directly affecting VHI in the Statement of Grounds the affidavit sworn on behalf of BUPA the Points of Claim delivered by BUPA and having regard also to the fact that VHI would be uniquely adversely affected if BUPA were to succeed in the proceedings Furthermore even if the test contained in Order 15 Rule 13 were the correct test to apply this court feels that there ample grounds for holding that VHI is a body whose proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially That this may be a relevant consideration is evident from the corresponding law in England as noted by Keane CJ in Barlow v Fanning when at p 599 he cited a passage to that effect from Halsbury s Laws of England 4th ed Vol 37 para 226 Mr Collins rather ingeniously sought to deal with this aspect of the case by suggesting that VHI would lose nothing if the case went against them that they merely have at present the contingent possibility of a financial windfall if the Scheme becomes operative The court can not accept this contention because to do so is to ignore the reality of the unprecedented mano a mano struggle between the rival insurers in this case and their respective claims of detriment to financial viability if unsuccessful in the proceedings Given that the circumstances which warrant the joinder or intervention of a party in proceedings before the Court of First Instance are agreed not to coincide with those contained in the Rules of the Superior Courts the court does not seek to invoke in aid of its decision the fact that the Court of First Instance has allowed VHI intervene in the challenge to the ruling of the Commission in favour of Risk Equalisation It is nonetheless a factor which at the level of practical common sense suggests the appropriateness of rejoining VHI in the present proceedings particularly when the further recommendation of the HIA for the commencement of Risk Equalisation is taken into account For these various reasons the court has allowed the appeal in this case 19 THE SUPREME COURT APPEAL NO 315 05 JUDICIAL REVIEW 2005 NO 532JR Kearns J Macken J Clarke J BETWEEN BUPA IRELAND LIMITED AND BUPA INSURANCE LIMITED APPLICANT RESPONDENTS AND THE HEALTH INSURANCE AUTHORITY THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND VOLUNTARY HEALTH INSURANCE NOTICE PARTY APPELLANT JUDGMENT delivered by Kearns J on the 2nd day of December 2005 These proceedings concern an appeal brought by the notice party appellant The Voluntary Health Insurance Board VHI from the judgment of the High Court Peart J delivered on the 27 July 2005 and from the order made pursuant to that judgment on 29 July 2005 whereby the High Court directed that the action should proceed as between the applicants respondents BUPA Ireland Limited and BUPA Insurance Limited BUPA and the third and fourth named respondents being respectively The Health Insurance Authority HIA the Minister for Health and Children the Minister Ireland and the Attorney General the State without the presence of VHI as a notice party The purpose of the appeal therefore is to reinstate the VHI as a notice party on the basis that it is a party genuinely interested in and affected by these proceedings which are scheduled to be heard in the High Court in early December Background The proceedings were commenced by BUPA pursuant to leave granted by the High Court Clarke J on 24 May 2005 As originally initiated BUPA s claim sought to impugn a recommendation the First Recommendation dated 29 April 2005 of the HIA to the Minister that payments under the Risk Equalisation Scheme 2003 the Scheme should be commenced by the Minister BUPA also sought to impugn the Scheme and certain provisions of the Health Insurance Act 1994 as amended the Act under which the Scheme was established BUPA sought to do so on various grounds including constitutional grounds and other grounds which include alleged breaches of the law of the European Union The principle of community rating is at the heart of the dispute between the parties a dispute the resolution of which is seen by both BUPA and VHI as having enormous financial implications for both insurers to the point where it has been said that a successful outcome for one party would threaten the other s financial viability and ability to compete The fundamental principle of community rating is that all insured persons should share equally in the cost of health care on the basis that the excess of premiums over claims for younger healthier members is used to pay the excess of claims over premiums for older and less healthy members It is based on the principle of societal and inter generational solidarity and prevents insurers risk rating individuals for health insurance It is combined with the principle of open enrolment which dictates that a private health insurer cannot refuse cover to anyone below age 65 and also the principle of lifetime cover which guarantees the right of the insured to renew a private health insurance policy Furthermore the legislation incorporates the principle of minimum benefits which dictates that all private health insurance schemes or plans must provide at least a certain level of coverage The scheme is intended to assist the maintenance of community rating across the market for people who are or may become privately insured providing that health insurance undertakings whose risk profile of members is less costly than the risk profile of all insured persons should compensate those undertakings with more costly risk profiles While VHI contend that the Scheme is essential to render effective the principle of community rating BUPA takes quite a different position It contends a That s 12 of the Act provides for an unauthorised delegation of legislative power contrary to Article 15 of the Constitution b That the Risk Equalisation Scheme implemented under s 12 of the Act amounts to an imposition of a form of direct or indirect taxation or implementation of a money bill by way of delegated legislation contrary to Articles 15 and 21 of the Constitution c That the imposition of charges pursuant to s 12 interferes with BUPA s rights to private property and to carry on its business contrary to articles 40 3 and 43 of the Constitution d That s 12 of the Act and the Scheme constitute an impermissible restriction by Ireland upon BUPA s right of establishment and freedom to provide services subsisting under the EC Treaty and the Third Non Life Insurance Directive contrary to the provisions of the Treaty and the Directive e That the State has failed to discharge its obligations under Article 10 of the EC Treaty in enacting a Scheme which results or is capable of resulting in the reinforcement of VHI s dominant position in the Irish market contrary to Article 82 of the Treaty f That the State has breached Article 86 of the EC Treaty in enacting a scheme which might have the consequence of bringing about the abuse of the VHI s dominant position contrary to Article 82 of the Treaty At present the Scheme does not operate The Act and the Statutory Instrument made thereunder provide for the introduction of the Scheme in certain circumstances The Risk Equalisation Scheme 2003 S I No 261 2003 provides for an evaluation by HIA of the operation of health insurance in the market and in particular requires the HIA to determine the nature and distribution of risks amongst Scheme undertakings and to make recommendations to the Minister The Minister is empowered to make a determination to introduce the Scheme If the Scheme is implemented it will undoubtedly involve the making of very substantial payments to VHI When granting leave to BUPA to commence these proceedings on 24 May 2005 the court also granted a stay on the implementation of the First Recommendation Ultimately however the Minister did not accept the first Recommendation and the Scheme was not implemented However as appears later the HIA thereafter made a provisional Second Recommendation that the Scheme be implemented which said recommendation became a final Recommendation on the 28 October 2005 the day following the hearing of this appeal by the court By Notice of Motion dated 27 May 2005 application was made on behalf of VHI pursuant to Order 84 Rule 22 6 and or Order 84 Rule 26 1 of the Rules of the Superior Courts and or pursuant to the inherent jurisdiction of the court joining VHI as a notice party to the proceedings and permitting VHI to participate in the proceedings In the grounding affidavit in support of the application David Clarke solicitor for the VHI outlined VHI s interest in the proceedings He asserted there was a clear justification for VHI being joined as a notice party because VHI was and is the party entitled to receive the greater part of any funds becoming available as a result of payments directed by the Minister under the Scheme VHI also relied on the fact that the Statement grounding BUPA s application for judicial review and the affidavit sworn on behalf of BUPA by Martin O Rourke on 24th May 2005 made a number of specific claims assertions and allegations in relation to the situation and conduct of VHI in the market The High Court Quirke J made an order on 30 May 2005 joining VHI as a notice party to the proceedings It is of some significance to note that BUPA did not oppose VHI s application at that time Thereafter Opposition papers were served on behalf of the State and on behalf of VHI The Statement of Opposition on behalf of VHI was verified by an affidavit sworn by Vincent Sheridan the Chief Executive Officer of VHI on 15 June 2005 In the meantime however the Minister decided on 27 June 2005 not to accept the First Recommendation and the claim by BUPA in respect of the First Recommendation as such became moot However the balance of BUPA s claims continued although from that point in time onwards and in the absence of any further recommendation it is fair to say that BUPA regarded the presence of the HIA and VHI as superfluous to the issues to be disposed of by the High Court The matter came back to the High Court Quirke J on 4 July 2005 when with the agreement of the parties the court directed the parties to exchange Points of Claim and Points of Defence I should observe that the court on that occasion did not direct that the proceedings be remitted to plenary hearing The proceedings were at all times and remain even now judicial review proceedings The court did not rule on the appropriateness of VHI remaining as a notice party on that date and the respective positions of the parties were reserved Thereafter Points of Claim were served on behalf of BUPA on 6 July 2005 Points of Defence were served on behalf of the State on 14 July 2005 Points of Defence were served on behalf of VHI on 15 July 2005 By Notice of Motion issued on 8 July 2005 BUPA sought certain directions from the High Court Those directions were a As to pleadings b As to the mode of trial c As to the further involvement in the proceedings of VHI d As to date of trial That application was granted on an affidavit sworn by Liam Kennedy on 8 July 2005 In his affidavit Mr Kennedy asserted inter alia that VHI was no longer a proper person to be heard in the proceedings in light of the fact that the Minister had decided not to accept the First Recommendation It was contended on behalf of BUPA that once the challenge to the validity of the First Recommendation was no longer a live issue in the proceedings and where the remaining subsisting issue was a constitutional and EC law challenge to the validity of the Scheme and to the 1994 Act it was no longer appropriate for VHI to be a Notice Party to the proceedings In the course of his affidavit Mr Kennedy asserted that had BUPA proceeded by way of plenary proceedings to bring its constitutional challenge VHI would have had no basis for seeking to become involved in those proceedings and that while VHI may have had an interest in the outcome of the proceedings it was no different from any party interested in the outcome of a constitutional challenge brought to legislation He also contended that VHI was not a proper person to be heard within the meaning of Order 84 of the Rules of the Superior Courts On that basis BUPA requested the court to direct that VHI should no longer participate in the proceedings BUPA s application was resisted by VHI for the reasons already stated Quite apart from the potential effects of the First Recommendation it was contended on behalf of VHI that there were other allegations and assertions made by BUPA which directly affected VHI which said allegations in relation to the position or conduct of VHI could not properly be dealt with without VHI being a party to the proceedings It was submitted that the proceedings were judicial review proceedings and that the court had already directed that VHI was an appropriate party to be joined as a notice party to the proceedings in its order of 30 May 2005 It was further contended that even if proceedings had been commenced by way of plenary summons that would not have prevented VHI from being entitled to apply to be joined as a party to the proceedings having regard to the allegations made against VHI in the proceedings In an affidavit sworn by Mr Clarke on the 14 July 2005 Mr Clarke asserted in the clearest possible terms that the statutory provisions which the applicant sought to impugn affected only a very limited number of persons namely providers of private health insurance in Ireland He stated that the evidence already placed before the court demonstrated clearly that VHI would be uniquely adversely affected by the undermining of the Scheme through any finding of unconstitutionality in the legislation a fact which had been recognised by the HIA the Minister and even the applicants themselves No replying affidavit had been sworn on behalf of BUPA asserting the contrary By way of completion of the background circumstances it should also be noted that proceedings were also brought by BUPA against a decision of the Commission approving the Risk Equalisation Scheme which is now the subject of a pending appeal before the Court of First Instance of the European Communities VHI applied to intervene in those proceedings and an order permitting VHI to do so was made by the President of that Court on 2 April 2004 In contrast with the Irish position BUPA had opposed VHI s application to intervene in those proceedings on the grounds that the position of VHI should be taken to correspond substantially with that of the State which had been already given leave to intervene in those proceedings That particular contention however was rejected by the President of the Court of First Instance The Court found that VHI would require to put its own arguments quite independently of the State The High Court Peart J delivered judgment on BUPA s application on 22 July 2005 The court held that the remaining claims in the proceedings namely the constitutional and EU law challenge to the 1994 Act were matters which could be decided upon by the court without the participation of VHI at the hearing The court explained its conclusion in the following passage of the judgment delivered by Peart J at p 9 Arising out of a successful challenge to any piece of legislation there may often be persons who would be affected financially or otherwise That fact alone is not sufficient to permit such persons to be joined in the plenary proceedings commenced against the Attorney General so that they can add their voices to the submissions which will be put forward by the Attorney General when he discharges his obligation to argue for the upholding of the legislation impugned In the present case the Attorney General is and will be fully and expertly represented to argue that case He is not arguing that case in any sense on behalf of VHI even though it is the principal and indeed probably the intended beneficiary of the Scheme Rather he is arguing for the constitutionality of the legislation on behalf of the Government and the people of Ireland The private interest of VHI is not one which needs to be heard in order to decide upon the constitutionality of the legislation or the EU law challenge The court referred to the provisions of Order 84 Rule 22 2 of the Rules of the Superior Courts It had been submitted on behalf of VHI that VHI was directly affected by the remaining claims in the proceedings and that it should therefore remain a Notice Party However in addressing that point the court appeared to take the view that the proceedings were no longer judicial review proceedings and that the VHI did not come within the provisions of Order 84 but rather that VHI came within the provisions of Order 15 of the Superior Court Rules but failed to satisfy the requirements of the latter The court thus decided to make an order directing that the remainder of the action proceed as between BUPA and Ireland and the Attorney General only Since the date of the judgment of the High Court a number of significant events have taken place Firstly further evidence has been delivered on behalf of BUPA in the proceedings This consists of affidavits of Martin O Rourke the Chief Executive of BUPA Ireland Dr Christian Kobolt an economist and Mr Robert Parke an actuary The affidavits of Mr O Rourke and Mr Parke each refer extensively to the alleged attributes and actions on the part of VHI in support of the claims made by BUPA in the proceedings Moreover the evidence of Dr Kobolt comprises expert economic evidence which BUPA relies upon to contend that the Scheme is inconsistent with the purposes of the policy of the 1994 Act and infringes the EC Treaty Dr Kobolt in his report refers to the key attributes and conduct of VHI and the effect of that conduct He produces statistical data relating to VHI s business A great deal of the report is alleged to contrast the positions and conduct of what Dr Kobolt refers to as the incumbent or monopolist health insurer on the one hand and any new entrant to the Irish private insurance market on the other Much of what Dr Kobolt says in his report with regard to VHI s operations and how it does its business is disputed by the VHI VHI apprehends that Dr Kobolt s evidence will be directed to establishing that the Scheme is not necessary and or that it is a restriction in competition It thus contends that the court should have available to it all relevant evidence with regard to the market analysis which will form an integral part of the case It is important to point out that by agreement between the parties this proposed evidence has been served on VHI and VHI has responded to it in the interim without prejudice to the outcome of this appeal and so as to avoid the trial of the proceedings being delayed in the event that the appeal succeeds More significantly under the 1994 Act and the Scheme the HIA is obliged to consider on a half yearly basis

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/343a937d0530e8cb802570cb004e0e0f?OpenDocument (2016-02-09)
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  • with a reasonable degree of certainty for third parties This provision although perhaps not always easy to apply has to a considerable degree clarified the approach to be taken in seeking to ascertain the scope of protection granted by a patent The interpretation of the claim and it must be emphasised that this only relates to the wording of the claim is to be neither too literal nor too liberal This statutory interpretation confirms the approach taken by Lord Diplock in Catnic Components Ltd v Hill Smith Ltd 1982 RPC 183 where he stated at page 243 A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge The question in each case is whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed even though it could have no material effect upon the way the invention worked The relevance of this passage to the present case is the emphasis on the understanding of persons with practical knowledge and experience rather than being on the actual intention of the patentee Frequently as in the present case claims in a patent are of a very technical nature and the nuances of such claims would not be understood by the ordinary man in the street The test therefore is not what the claim would mean to the man in the street but rather what it would mean to an expert in the field to which it relates or what has been expressed in a number of cases as a person skilled in the art A patent is addressed to and intended to be read and understood by such persons It may well be that the understanding of such persons may not be a meaning which was actually intended by the patentee or the inventor but as the purpose of a claim in a patent is to provide certainty as to the extent of the monopoly granted the relevant test is the understanding of the persons to whom it was addressed rather than the understanding of the patentee or inventor This has been explained very clearly by Staughton L J in Glaverbel SA v British Coal Corporation Anor 1995 RPC 255 in which he stated at page 268 a proposition which he said was common ground and was well founded namely The interpretation of a patent as with any other written document is a question of law That does not mean that the answer to it will necessary be found in our law books It means that it is for the Judge rather than a jury to decide and that evidence of what the patent means is not admissible In particular evidence of the patentee as to what he intended it to mean should not be admitted nor indirect evidence which is said to point to his intention Compare the rule that the parties to a deed or contract cannot give evidence of what they intended to mean A patent is construed objectively through the eyes of a skilled addressee More recently this was confirmed in the speech of Lord Hoffman in Kirin Amgen Inc Ors v Hoechst Marion Roussel Ltd Ors 2005 1 All ER 667 at page 680 where he said Construction whether of a patent or any other document is of course not directly concerned with what the author meant to say There is no window into the mind of the patentee or the author of any other document Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance was addressed would have understood the author to be using the words to mean Notice however that it is not as is sometimes said the meaning of the words the author used but rather what the notional addressee would have understood the author to mean by using those words The meaning of words is a matter of convention governed by rules which can be found in dictionaries and grammars What the author would have been understood to mean by using those words is not simply a matter of rules It is highly sensitive to the context of and background to the particular utterance It depends not only upon the words the author has chosen but also upon the identity of the audience he is taken to have been addressing and the knowledge and assumptions which one attributes to that audience It is for the reasons set out in these passages that the evidence of the patentee or the inventor himself is not admissible as an aid to construction of claims in a patent What is admissible is the evidence of a person to whom the patent is addressed as to such person s opinion of the meaning of the claim The status of correspondence with the patent office was considered by the Court of Appeal in England in Rohm Haas Co v Colla Ltd 2002 F S R 28 page 455 In that case in response to official observations made by the European Patent Office during the prosecution of the patent application the claimant had carried out certain experiments A letter written to the European Patent Office by the claimant in that case clearly contained material relevant to the construction of the claim but notwithstanding this it was admitted in evidence on the basis set out in the judgment of Robert Walker L J at page 457 as follows The letter to the European Patent Office did not have the same status as published prior art identified in a specification which is readily admissible But it did contain objective information about and commentary on experiments which were conducted in response to official observations and it could be of assistance in resolving some puzzling features of the specification Although the prosecution process may sometimes superficially resemble a process of negotiation between the applicant and its advisors and the officials who scrutinise the file it is not the sort of commercial negotiation which is still rigidly excluded in the construction of a written contract It should be said that the Judge concluded at the end of the same paragraph by saying that Had it been for the Judge to take account of the letter in order to resolve the issue of construction I consider that he would have been entitled to do so It certainly would appear from the context that the latter comment quoted above was in fact obiter but it is relied upon to a considerable degree by the Appellants The Appellants Argument The Appellants do not contest the legal principle that evidence of the intention of the patentee is not admissible What they do contend is that these letters are admissible as evidence relevant to the position of the skilled addressee They seek to argue that the authors of this correspondence who were patent agents were persons skilled in the art and that the correspondence is admissible as evidence of the opinions of persons skilled in the art as to the construction of the claims There is in fact no evidence before the Court as to the qualifications or experience of such persons but leaving that question aside this correspondence was not written from the point of view of an independent expert but was written as part of submissions made on behalf of the patentee or inventor in relation to the invention itself Unlike the letter in the Rohm Haas case this correspondence did not deal with experiments was not made in the course of the application for this patent and the correspondence in fact took place after the priority date In my view that decision does not assist the Appellants Conclusions In my view the fatal flaw in the Appellants case is that these letters were written by persons acting on behalf of the Appellants and who were in fact their agents for the purpose of entering into this correspondence They were not written by such agents acting on their own behalf but acting on behalf of the Appellants They were submissions on the Appellants behalf being made to the several patent offices and as such were intended to and did reflect the views of the Appellants They expressed the construction which the Appellants wished to put upon the claims in the patent in suit As such they were in reality expressions of the opinion of the patentee as to the construction of the claims and accordingly they are clearly inadmissible I do not believe there is any validity in the argument that the authors of this correspondence were persons to whom the specification was addressed I do not think under any circumstances that it could be said that an inventor or a patentee addresses the terms of his patent to his own patent agent whether that patent agent be skilled in the art or not Accordingly I would dismiss this appeal 11 THE SUPREME COURT 242 05 McCracken J Macken J Kearns J Between Ranbaxy Laboratories Limited Ranbaxy Europe Limited and Ranbaxy Ireland Limited Plaintiffs Appellants AND Warner Lambert Company Defendant Respondent Judgment of Mr Justice McCracken delivered the 2nd day of December 2005 The Proceedings The Appellants are manufacturers and distributors of pharmaceutical products The Respondent is the proprietor of Irish Patent Number 60014 for a pharmaceutical product for reduction of cholesterol in the blood stream sold world wide under the trade mark Lipitor which has achieved enormous world wide sales The Appellants are seeking to produce and market a product known as Atorvastatin Calcium and in these proceedings are seeking A A declaration pursuant to section 54 of the Patents Act 1992 that none of the acts set out in sections 40 43 of the Patents Act 1992 if done in the Republic of Ireland in relation to Atorvastatin Calcium described in a letter sent by or on behalf of the plaintiffs dated the 30th day of July 2004 would constitute an infringement of any of the claims of Irish registered patent IE60014 B An injunction restraining the defendant whether by itself or through its servants or agents from issuing or maintaining proceedings against the plaintiffs their servants or agents asserting that the acts described in the letter of 30th July 2004 are unlawful whether by reason of breach of patent IE60014 or otherwise C Further or other relief D Costs For the purpose of this judgment it is not necessary to set out in detail the arguments of the parties based on scientific considerations other than at a very basic level The Respondent s product Lipitor is chemically a racemate while the Appellants proposed product is a single enantiomer It is the Appellants contention that the scope of the claim in the patent in suit is limited to racemates and does not extend to single enantiomers such as the Appellants proposed product Ultimately the outcome of the proceedings will largely turn on the proper interpretation of the scope of the Respondent s claim in the patent The Respondent in its defence claims that its patent extends in scope to cover the Appellants proposed product and is not limited to racemates In its reply to the defence the Appellants refer at paragraph seven thereof to a number of alleged representations made by or on behalf of the Respondent in which the Respondent is claimed to have stated that other patents in its ownership corresponding to the Irish patent are confined to the racemate The Issue Before the Court Following the close of pleadings the Appellants sought an order for discovery against the Respondent seeking inter alia discovery of the various documents set out at paragraph seven of the reply to the defence The Respondent contended that these documents ought not to be discovered as their contents would not be admissible in these proceedings On the hearing of the motion for discovery Finlay Geoghegan J on 8th April 2005 made an order that the following issue should be tried namely Are the matters set out in paragraph seven of the reply or other evidence of a similar type admissible in evidence in the proceedings The issue was heard before O Sullivan J and in his judgment delivered on 8th June 2005 he held that the documents were not admissible and it is from this decision that the Appellants appeal to this Court In the hearing before this Court the Appellants only sought to have two of the classes of documents set out in paragraph seven of the reply to the defence declared admissible The first of these comprised three letters written on behalf of the Respondent to the European Patent Office dated respectively 20th June 1995 10th June 1996 and 31st January 1990 The second class in fact only comprised one document namely a letter of 18th May 1993 written on behalf of the Respondent to the Danish Patent Office Purely for the purpose of this issue I am prepared to accept that the construction put on these letters by the Appellants namely that they stated that the patents referred to therein are confined to the racemate is a correct construction and also to accept that this correspondence refers to patents corresponding to the Irish patent The three letters to the European Patent Office were written by Ivo Mansmann who is a European patent attorney attached to the legal division of the Respondent The letter to the Danish Patent Office was written by the International Patent Agency of Taastiup in Denmark acting as agent for the Respondent Legal Principles Section 45 of the Patents Act 1992 so far as it is relevant reads 1 The extent of the protection conferred by a patent or a patent application shall be determined by the terms of the claims nevertheless a description and drawings shall be used to interpret the claims 3 In the interpretation of this section the Court shall have regard to the directions contained in the protocol on the interpretation of Article 69 of the European Patent Convention and set out in the second schedule to this Act The directions referred to in s 45 3 set out in the second schedule to the Act and read as follows Section 45 should not be interpreted in the sense that the extent of the protection conferred by a patent is to be understood as that defined by the strict literal meaning of the wording used in the claims the description and drawing being employed only for the purpose of resolving an ambiguity found in the claims Neither should it be interpreted in the sense that the claims serve only as a guideline and that the actual protection conferred may extend to what from a consideration of the description and drawings by a person skilled in the art the patentee has contemplated On the contrary it is to be interpreted as defining a position between these extremes which combines a fair protection for the patentee with a reasonable degree of certainty for third parties This provision although perhaps not always easy to apply has to a considerable degree clarified the approach to be taken in seeking to ascertain the scope of protection granted by a patent The interpretation of the claim and it must be emphasised that this only relates to the wording of the claim is to be neither too literal nor too liberal This statutory interpretation confirms the approach taken by Lord Diplock in Catnic Components Ltd v Hill Smith Ltd 1982 RPC 183 where he stated at page 243 A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge The question in each case is whether persons with practical knowledge and experience of the kind of work in which the invention was intended to be used would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed even though it could have no material effect upon the way the invention worked The relevance of this passage to the present case is the emphasis on the understanding of persons with practical knowledge and experience rather than being on the actual intention of the patentee Frequently as in the present case claims in a patent are of a very technical nature and the nuances of such claims would not be understood by the ordinary man in the street The test therefore is not what the claim would mean to the man in the street but rather what it would mean to an expert in the field to which it relates or what has been expressed in a number of cases as a person skilled in the art A patent is addressed to and intended to be read and understood by such persons It may well be that the understanding of such persons may not be a meaning which was actually intended by the patentee or the inventor but as the purpose of a claim in a patent is to provide certainty as to the extent of the monopoly granted the relevant test is the understanding of the persons to whom it was addressed rather than the understanding of the patentee or inventor This has been explained very clearly by Staughton L J in Glaverbel SA v British Coal Corporation Anor 1995 RPC 255 in which he stated at page 268 a proposition which he said was

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/859e1f48dd2f14a6802570cb00508042?OpenDocument (2016-02-09)
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