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  • enclosed 35 The obligation which Germany was thus accepting was pursuant to the wording of Article 8 of the Dublin Convention an obligation to examine the application for asylum made by the applicant in Ireland on the 6th November 2000 Application of the Dublin Convention 36 As noted above the applicant adopted the position that the Dublin Convention did not apply to his circumstances at all The basis on which it succeeded in the High Court however was a different one and one which in fact assumed the applicability of the Convention He succeeded on the basis that the request had been made under Article 10 1 e instead of Article 10 1 a I propose however to examine both points starting with the more general one 37 The applicant has made an application for asylum in this country By reason of the obligations assumed by the countries party to the Geneva Convention and to the Dublin Convention he has a right to have this application dealt with There is no exclusion of this right simply by reason of his having previously made one or more applications for asylum elsewhere By Article 3 2 of the Dublin Convention his application is to be examined by a single Member State and the identity of this State is to be determined in accordance with the criteria defined in the Convention Such examination by the following sub Article is to be dealt with in accordance with that country s national laws and international obligations By the terms of the Implementation Order quoted above it is the responsibility of the Refugee Applications Commissioner to determine the State responsible for dealing with the application This reflects the provisions of Article 3 4 of the Convention That sub Article also provides that on the determination that another country is responsible for dealing with the application Ireland is relieved of its obligations which are transferred to the Member State which expresses willingness to examine the application 38 The applicant however contends that because Germany has already examined an application for asylum by this applicant made in 1998 and finally determined in 2000 it is functus in relation to any other application made by this person In support of this contention Mr Durcan made the arguments summarised above to the effect that under the Convention there can only be one application for refugee status in any single country in respect of any one applicant 39 It will be observed first that this is clearly not the view of the German State Furthermore no authority in support of the contention from any convention country has been cited 40 If there were merit in the applicant s broad contention it would confer a right on an applicant to have his application finally rejected in any Member State and then to proceed to make a further application to another quite contrary to the objective set out in the recitals to the Dublin Convention to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States 41 Applications for asylum by individuals in one State after another are quite common as exemplified in Demeter s case Each such application is a separate one which triggers in a convention country the obligation to consider it But part of this consideration is a determination as to which convention country should assume responsibility for it Accordingly the very principle which allows the application to be made in the first place despite the applicant s history equally triggers the State s entitlement to request another State to take responsibility for it and that other State s right to consent Nor has the applicant established any legitimate expectation that Ireland will complete the examination of his application he merely has the legitimate expectation that Ireland will act in accordance with its convention obligations and its own law These entitle it inter alia to determine the State responsible for the examination of the application and require it to consider and determine this issue before any other 42 Mr Durcan contended that Ireland could have investigated the application and found it manifestly unfounded pursuant to s 12 4 i of the Refugee Act 1996 This defines a manifestly unfounded application inter alia as one prior to which the applicant had made an application for a declaration or an application for recognition as a refugee in a State party to the Geneva Convention and the Commissioner is satisfied that his or her application was properly considered and rejected and the applicant has failed to show a material change of circumstances 43 In my view there is no obligation on the State or on the Commissioner to review for propriety the procedures and considerations given to a particular application in another State with whom according to the recitals of the Dublin Convention we share a common humanitarian tradition and an objective of harmonisation of asylum policies The Commissioner bearing these objectives in mind is in my view entitled to consider whether under the terms of the Dublin Convention which is more restricted in its area of operation than the Geneva Convention referred to in s 12 4 i another Dublin Convention State has responsibility of examining the applicant s application In this regard I agree with the judgment of Smyth J in Demeter 44 I would add that an examination by a Member State responsible under the Dublin Convention which assumes a summary or abbreviated form since there has already been an examination of a previous application by him in that country continues to be an examination for the purposes of the Dublin Convention 45 I am quite satisfied that there is no legal or factual aspect of this application which excludes it from the scope of the Dublin Convention and the Implementation Order and in particular that the final rejection of a previous application in the State otherwise responsible does not have this effect Vires to make the request to Germany 46 The High Court has held that Article 10 1 e of the Dublin Convention has not been implemented in the State and accordingly a request to the other Member State may not be made pursuant to Article 10 1 e It is also held that in any event sub paragraph e merely imposes a separate and distinct obligation on the Member State to take back an alien whose application it has rejected and who is illegally in another Member State It does not appear to envisage the transfer of an application for asylum 47 Article 10 of the Dublin Convention sets out certain obligations of the Member State responsible for examining an application for asylum In the present case this is not Ireland it is Germany Manifestly no implementation into Irish law of any part of the Convention can in and of itself impose an obligation on Germany This is so by reason of territorial limitations in the application of Irish laws contained in the Constitution and because of the existence of Germany as a separate sovereign State Ireland did not invoke Article 10 1 e as the basis of its power or authority to make a request of Germany It called upon Germany to assume responsibility in this particular case in accordance with Germany s obligations under Article 10 1 e This is an international obligation which presumably has been implemented in German law by an appropriate mechanism or by operation of law 48 Article 11 3 of the Implementation Order provides as follows If following the refusal of an application under s 17 of the Act the applicant concerned leaves the State and enters a convention country without the permission of that country then if the State receives a request from the convention country to readmit the applicant to the State the Commissioner shall reply to the request within eight days of such receipt and if he or she accedes to the request shall notify the Minister for the purposes of obtaining his or her consent which shall not be unreasonably withheld to readmit the applicant as soon as may be 49 This is an implementation of Article 10 1 e in Irish law in respect of the only matter connected with it which Ireland is entitled to govern by its domestic law acceptance in that law of our international obligation under Article 10 1 e It is for this reason that if the positions of Ireland and Germany in this case were reversed Ireland would be obliged to readmit the applicant That is precisely the decision Germany has come to on the actual facts of the present case and no doubt that is a correct decision in German law The contrary has not been contended 50 The learned trial judge characterised the request to Germany as an ultra vires request by virtue of what she held to be the non implementation in Irish law of Article 10 1 e I do not consider that that sub Article was at any stage relied on as conferring vires to make the request In the ordinary way I do not consider that the State requires a specific legal power simply to make a request of another State However in so far as a request legitimate under the terms of the Convention must be shown in order to terminate Ireland s responsibility itself to examine the application the provisions cited clearly on the face of the request of the 19th January 2001 are Article 6 1 of the Implementation Order and Article 11 of the Convention The latter provides 1 If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application it may as quickly as possible and in any case within the six months following the date on which the application was lodged call upon the other Member State to take charge of the applicant 51 In my view the request of 19th January 2001 reflects the wording of this provision Because the Commissioner has formed the opinion that Germany is responsible for examining the application the State may call on Germany to take charge of the applicant A decision about responsibility for examination of the application may thus give rise to an obligation to take charge of the applicant Moreover by the next paragraph of Article 11 if the request that charge be taken is not made within six months then responsibility for examining the application for asylum shall rest with the State in which the application was lodged i e in this case Ireland 52 It appears to me that the vires conferred by Article 11 1 apply regardless of which of the provisions of Article 10 may be considered to apply to the case Nor do I consider that any invocation of Article 10 1 e excludes or is inconsistent with an examination of an application for asylum taking place in the country invited to take charge or take back the applicant for asylum All of the obligations set out in Article 10 1 a to e are obligations of the Member State responsible for examining an application for asylum The application in this case as the letter of request makes clear is the application made in Ireland on the 6th November 2000 It is uncontested that Germany is properly responsible for examining this application This position is unaltered by the fact that it has previously rejected another application Article 10 1 e is no more than a statement of the obligation specifically in relation to a person whose application a Member State is responsible for examining but who has previously made another application to that State and after its rejection travelled illegally to another Member State 53 Accordingly I consider that Ireland is entitled to transfer this application for examination in Germany That being so by virtue of s 22 8 of the Act of 1996 the application made here shall be deemed to be withdrawn 54 In my view it is a misconstruction of Article 10 to regard the obligations set out in the various subparagraphs of 10 1 or any of them as being necessarily exclusive of each other Firstly all the obligations arise only because the country on whom they devolve is the country responsible for examining an application according to the criteria set out in this Convention This applies to the obligation in subparagraph e as much to that in subparagraph a 55 Secondly the circumstances of a particular person may trigger more than one of the Article 10 obligations Here the applicant would fall to be taken back under 10 1 e even if he made no application for refugee status in Ireland But he did make such application and Germany is liable to examine it and to take charge of him for that purpose However since he has already been in Germany as an applicant for refugee status and was at that time taken charge of by Germany to take charge of him now is also to take him back It is meaningless on the present facts to distinguish the two phrases in his case it is impossible to take charge of him without also taking him back The obligation to take him back is not terminated by the fact that the State invited to take him back has other obligations to him and those other obligations are not avoided simply by taking him back 56 Since Mr Y is required to be taken back and also to have his application examined in Germany it follows that no one subparagraph of Article 10 wholly defines Germany s obligations There is no reason why any single subparagraph should Equally no exclusive group of subparagraphs will wholly define a country s obligations if on the facts other provisions also apply Similarly neither Article 11 nor Article 13 exclusively govern the procedural requirements of his case But in my view the request which has been made of Germany meet the requirements of both Articles 57 In my opinion the request of the 19th January 2001 reflects the fact that Germany is obliged without limitation of time to take back this applicant under Article 10 1 e If he had not made an application for asylum in Ireland that would exhaust Germany s obligations under the Convention But he did make such an application That separate fact triggers separate but not inconsistent obligations on the part of Germany which that country is quite willing to accept Amongst these is the obligation following a request under Article 11 to take charge of the applicant in pursuit of its obligations under 10 1 a 58 I accept that the distinction between the expressions take charge of and take back may be of great significance in a particular case But on the facts of the present case these phrases overlap in their only possible application to those facts 59 The nub of the applicant s case is that Article 3 1 of the Implementation Order makes no express reference to the transfer of an applicant in circumstances where the other country concerned has already examined and rejected an earlier application But it makes no reference to any special circumstances whatever even though each case will naturally present its own The fact that there is no reference to the particular situation of a previous application having been rejected elsewhere or to any other special set of circumstances simply illustrates that it is the receipt of an application for asylum here without more which triggers in every case the obligation to consider where the application should be examined There is no exclusion of the Commissioner s duty to consider this on account of a previous application elsewhere or any other aspect of the applicant s history But such factors may be crucial in considering which country should examine his current application 60 It thus appears to me that both subparagraphs a and b on the one hand and subparagraph e on the other of Article 10 1 are capable of applying to the applicant in this case and no doubt in many other cases where multiple applications are made But the balance of Article 10 provides for different modes of termination of the obligations referred to in a to d by comparison with the obligation referred to in subparagraph e the obligation under subparagraph d may be terminated in either way No doubt for good reason the framers of the Convention imposed no time limit on the responsibility of a State which has already rejected an application by the same person but failed to deport him Ireland or any other State party to the Convention is fully entitled to make a request based in part at least on the indefinite obligation set out in subparagraph e 61 I am unable to agree with the learned trial judge that the obligation contained in Article 10 1 e of the Dublin Convention is a distinct obligation independent of any obligation to complete an examination of an application for asylum As already mentioned the obligation at subparagraph e is an obligation of the Member State responsible for examining an application for asylum according to the criteria set out in this Convention In terms of the language of the Convention the obligation is not grammatically or syntactically distinguished from the other obligations set out in the sub Article It is certainly true that the obligation in subparagraph e may arise in circumstances where none of the other obligations described in 10 1 are applicable to the facts of a particular case But this does not mean that the subparagraph e obligation is different in it essential nature from the other obligations so that if it arises no other obligation arises The obligations which arise under Article 10 depend entirely on the facts of the case In any particular case as many obligations will arise as are triggered by the facts Conclusion 62 I consider the request made to Germany on the 19th January 2001 to be a proper one which there was power to make and which was duly acceded to by Germany I would set aside the order of the High Court and substitute an order refusing the relief sought 2003 IESC THE SUPREME COURT 81 03 Keane C J Denham J Murray J McGuinness J Hardiman J Between D Y Applicant Respondent and THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM THE REFUGEE APPLICATIONS COMMISSIONER and JAMES NICHOLSON MEMBER OF THE REFUGEE APPEALS TRIBUNAL Respondents Appellants JUDGMENT of Mr Justice Hardiman delivered the 1st day of December 2003 1 On the 3rd November 2000 the applicant arrived in Ireland and shortly afterwards made an application under s 8 of the Refugee Act 1996 for a declaration that he is a refugee In the course of his application he was asked whether he had claimed asylum in any of the countries he transited on his way to Ireland or in any other country He replied Yes In Germany from April 1998 to September 2000 His complaint about the German decision was that it was a largely arbitrary speculative and typically German political decision on the right to asylum in general and towards Cameroonians in particular 2 It transpired that the applicant had made an application for asylum in Germany on the 22nd April 1998 which was refused He appealed this decision unsuccessfully the appeal being dismissed on the 11th May 2000 It appears from this chronology that within six months of the final decision in Germany the applicant had made a further application for refugee status in this country Proceedings in Ireland 3 On the 19th January 2001 Ireland made a request to Germany for the purpose of having the asylum application made here determined in Germany pursuant to certain provisions of the Dublin Convention On the 8th May 2001 Germany accepted responsibility for the applicant under Article 8 of the Dublin Convention 4 Accordingly on the 11th May 2001 the Refugee Applications Commissioner determined that the applicant s application for asylum should properly be examined in Germany The applicant was notified of this by letter of the same date This informed him that The Refugee Applications Commissioner has determined that your application for refugee status is one which should properly be examined by Germany in line with the provisions of Article 8 of the Dublin Convention The letter gave reasons for this decision 5 The applicant then appealed this decision On the 26th June 2001 the third named respondent Mr Nicholson who was a member of the Refugee Appeals Tribunal affirmed the decision of the Refugee Appeals Commissioner This decision said in part I find that the applicant has applied for asylum in Germany and I find that Germany under Article 8 of the Dublin Convention being the first member State in which the applicant lodged an application for asylum is responsible for examining the applicant s application for asylum 6 I find that the decision of the Refugee Applications Commissioner is in conformity with the Dublin Convention Implementation Order 2000 and I find that Germany is the member State responsible for accepting or taking back the applicant under Article 8 of the Dublin Convention and to deal with any matter or application in respect of the applicant s asylum Accordingly I affirm the original decision and dismiss this appeal 7 The applicant then moved for relief by way of judicial review The first ground advanced puts the nub of his case baldly The second and third named respondents erred in law in concluding that the Dublin Convention 1990 applied to the applicant s case The said Convention has no relevance to the case herein as the applicant s application has previously been determined in Germany 8 This was the only ground argued in the High Court 9 The applicant was successful before the High Court Finlay Geoghegan J on a different and much narrower ground In her judgment of 18th December 2002 the learned judge held that the decision of the Commissioner that the application should properly be examined by Germany by reason of Article 8 of the Convention was intra vires She went on however to hold that The implicit decision that the applicant be transferred was based upon a request to Germany made pursuant to a provision of the Convention which has not been implemented in Ireland and relied upon Germany s acceptance of the request made to it pursuant to Article 10 1 e of the Convention 10 She went on to find in relation to the decision of Mr Nicholson that Whilst no part of the reasoning of the third named respondent is expressly dependent upon Article 10 1 e it is however predicated upon the ultra vires request made to Germany pursuant to Article 10 1 e 11 But the learned trial judge had already concluded that Article 10 1 e of the Dublin Convention obliges a member State to accept back into that State a person whose application for asylum it has previously refused as a distinct obligation and independently of any obligation to complete an examination of an application for asylum Accordingly it does not appear to me that the Oireachtas and the Minister for Justice in enacting s 22 of the Refugee Act 1996 and the 2000 order made thereunder had implemented this provision in the State 12 On this basis the High Court granted an order of certiorari of the decision of the third named respondent upholding the decision of the second named respondent to transfer the application of the applicant to Germany and remitted the applicant s appeal to the Refugee Appeals Tribunal 13 The High Court went on pursuant to s 5 3 a of the Illegal Immigrants Trafficking Act 2000 to grant leave to appeal and to certify that its decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court The points that were certified were i Whether or not Article 10 1 e of the Dublin Convention has been incorporated into the law of the State and ii Whether or not the second and third respondents had jurisdiction pursuant to the Dublin Convention Implementation Order 2000 SI 343 of 2000 to make or uphold a decision that Germany be requested to take back the applicant pursuant to Article 10 1 e of the Dublin Convention Scope of Appeal 14 Mr O Higgins S C for the appellants who had not appeared in the High Court was simply unable to tell us whether his argument was that advanced in that Court Mr Durcan S C for the respondent who had appeared in the High Court informed us quite frankly that while he naturally endorsed the High Court order he did not necessarily adopt the approach of the learned High Court judge which had led to that result He said that his argument in the Court below had been broader than that reflected in the judgment He was not necessarily contending that Article 10 1 e had not been implemented in the State or that even if that were so it was dispositive of the present case He says the approach of the learned High Court judge was not necessarily the correct one He viewed the case as being about the implementation of the Convention in Irish law by means of the statutory instrument of 2000 He was not narrowly focussing on Article 10 1 e though that was an important part of his construction of Article 10 as a whole Rather he was saying that neither the Act of 1996 nor the Regulations of 2000 authorised the second and third named respondents to terminate their investigation of the applicant s application on the basis of the simple decision that Germany was the nation responsible for dealing with it On a true construction of the Irish Statute and Regulations he said only the referral of an application to another Convention country for examination entitled Ireland to cease its examination of the application This had not occurred here 15 In the present case neither party took exception to the others making arguments which went outside the scope of the points certified by the learned High Court judge I would accordingly accept the arguments actually made I would however expressly reserve my position until the point arises in a case where it is contested of the entitlement of either party to go beyond the points certified Intent of the subscribers to the Dublin Convention 16 I entirely agree with the judgment of the Chief Justice on this topic He said that he was satisfied that it was clearly the intention of the framers of the Convention that in a case such as the present where an application for asylum made in another Member State has been rejected in that State and the applicant then arrives illegally in this State he should be taken back to the State which has already dealt with his application It would then be a matter for that State to decide in accordance with its own laws whether the applicant should be deported to his country of origin or permitted to remain on humanitarian grounds or on any other grounds which those laws would permit being invoked in his case 17 I did not understand either the judgment of the learned trial judge or the submissions of either party to express any other view of the intention of the framers of the Convention But three separate views have been expressed as to the application of these principles to the present case The appellants contend for the validity of the determinations of the second and third named appellants as being fully within their powers The applicant respondent says that the provisions of the Convention relied on simply have no application in the present circumstances because it is not simply possible to transmit his application for refugee status for examination in Germany since that country has concluded its examination The learned trial judge based her decision not on that broad ground but on the basis that the request by the State to take charge of the applicant and admit him to its territory for the purpose of examining his case for asylum in accordance with Article 10 1 e of the Dublin Convention was invalid Such request she held will normally be made pursuant to Article 10 1 a of the Dublin Convention Submissions in this Court 18 For the appellants Mr Paul O Higgins S C submitted that the learned trial judge had misinterpreted Article 10 1 e This provision he said describes the obligation not of the State but of the other relevant State of whom a request may be made by us Article 11 3 of the Dublin Convention Implementation Order 2000 implements this obligation binding upon the State into Irish law The result of this said Mr O Higgins is that if the positions of Ireland and Germany in this case were reversed Ireland would be obliged to take back the alien by virtue of having thus implemented relevant provision of the Dublin Convention here That is all this State can do it cannot and has not attempted to produce Irish legislation which imposes an obligation on Germany But said Mr O Higgins this State was entitled to call upon Germany to take charge of the applicant in pursuance of Germany s obligations under the Dublin Convention 19 Mr O Higgins went on to direct submissions to the power of the Irish authorities following acceptance of Germany s responsibility by that country He said that the ordinary power to deport independently of any provision of the Act of 1996 or the Order of 2000 applied There would be no need to invoke a specific power in either of these sources This power he said was quite capable of being exercised in support of the underlying policy expressed in Article 3 of the Dublin Convention Germany has accepted the responsibility of examining the application made by the applicant in Ireland pursuant to Article 8 of the Dublin Convention This said Mr O Higgins is a sufficient discharge of the State s obligations He said that the word application applies equally to all applications made by the relevant person including in this case the application made in Ireland Germany is responsible for examining that application and this was held to be so by the learned trial judge and is not the subject of appeal The fact that Germany has already refused another application by the same person does not take away from this fundamental position The orders which it is sought to quash do no more than determine that Germany is the appropriate country to examine the application The learned trial judge fell into error in quashing the determination of the second and third named respondents on the basis that they contained an implicit decision that the applicant be transferred which was based upon a request to Germany made pursuant to a provision of the Convention which has not been implemented in Ireland and relied upon Germany s acceptance of the request made to it pursuant to Article 10 1 e She was however quite correct in holding that the decision of the same respondents that Germany was the country which would properly examine the application was intra vires 20 Mr O Higgins said that any transfer of the applicant to Germany will not take place under the Convention which did not require to be invoked in this regard Once the application for asylum could lawfully be dealt with elsewhere the State was within its rights in deporting the applicant to the place where the application would be dealt with 21 For the respondent Mr Gerard Durcan S C said that the Convention was simply irrelevant Ireland was obliged by reason of its international obligations and specifically by reason of the Refugee Act 1996 to examine the application which the applicant had made in this country for refugee status There were only two exceptions to this obligation firstly if the application is withdrawn and secondly if it is deemed to be withdrawn by virtue of the application being transferred to another State for examination pursuant to s 22 8 of the Act Neither of these things had occurred here therefore the State is obliged itself to examine the applicant s application 22 Furthermore Mr Durcan contended for the purposes of Article 10 of the Dublin Convention there is only one application Germany has already examined this application it has no jurisdiction to re examine it Mr Durcan said that the entire case comes down to the proposition that under the Convention there could only be one application for refugee status as of right It would have been open to the State he said to dismiss the application as manifestly unfounded pursuant to s 12 of the Act of 1996 But since this was not done the application made in this country must be dealt with here 23 Mr Durcan said that he supported the Order granting certiorari of the decision of the second and third named respondents to transfer the application of the applicant to Germany on the basis that this decision necessarily implied that there was no obligation further to consider the application for refugee status here Mr Durcan said that the powers of the second named respondent were strictly confined by Article 3 of the Dublin Convention Implementation Order There was simply nothing in that Article reflecting the obligation to take back under Article 10 of the Convention Putting this another way he said there was nothing in Article 3 to reflect a power to cut off the examination of an application for refugee status other than in accordance with the provision of s 11 The impugned decisions in context 24 By Article 3 of the Dublin Convention Implementation Order 2000 once an application is made under Article 8 of the Refugee Act 1996 as the applicant has done here the Commissioner is required to determine whether the application a should in accordance with the provisions of Article 3 7 of the Dublin Convention be transferred to a convention country for examination b should in accordance with the provisions of Article 10 1 d of the Dublin Convention be transferred to a convention country for examination c should in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention applied in the order in which they appear therein be transferred to a convention country for examination or d should in accordance with the criteria aforesaid or otherwise be examined in the State Emphasis added 25 The Refugee Applications Commissioner by a decision communicated on the 11th May 2001 informed the applicant that she had determined that your application for refugee status is one which should properly be examined by Germany in line with the provisions of Article 8 of the Dublin Convention The basis for this decision was that Germany was the first Member State in which the applicant had lodged an application for asylum and that the appropriate authorities had agreed to his return under the Dublin Convention for the purpose of examining his application The applicant appealed from this decision and the decision on the appeal was that of the third named respondent Mr Nicholson He upheld the Commissioner s decision on the basis that the applicant had applied for asylum in Germany and that that country was under Article 8 of the Dublin Convention as the first Member State in which the applicant lodged an application for asylum responsible for examining the applicant s application 26 Accordingly the decision of the Commissioner and of the Appeals Tribunal on appeal was a decision on a question which each of these bodies was obliged to address The

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  • undenied either by the plaintiff or by the members or former members of the Garda Síochána who swore affidavits 31 I am therefore of the opinion that while there was an undoubted lapse of time in the present case it was not due to unexplained dilatoriness to use the phrase employed in Martin v Conroy 2002 1 ILRM 461 In that case it was this unexplained dilatoriness together with the inferred reality of a real and serious risk of an unfair trial which amounted to exceptional circumstances I believe on the basis of the authorities cited above that neither open residence in Shannonbridge nor the fact that the plaintiff is the father of a child born since he absconded amount to exceptional circumstances It is in my view surprising bearing in mind the small population of Shannonbridge and its environs that the plaintiff s long period of signing on did not alert some member of the Garda Síochána to his presence in that area but this cannot amount to establishing that the requesting government is shown to have been inexcusably dilatory to use the phrase of Lord Edmund Davies in Kakis It should in fairness be noted that the signing on does not appear to have commenced until July 1993 almost three years after the Leeds Police inquiries were communicated to Ferbane 32 Lapse of time is the principal point relied on by the plaintiff I can not attribute responsibility for it to the Leeds Police on the facts as known to this Court 33 I propose now to consider the other factors urged by the plaintiff as constituting in themselves or together with the lapse of time other exceptional circumstances Firstly he says that he was led to believe by reason of the lapse of time that the authorities in England were not pursuing the matter 34 The plaintiff had taken deliberate steps to put himself outside jurisdiction of the English Police and Judicial authorities He had done this in October 1990 the very month in which his alleged victim died While he gives no reason for having done so the reason must relate to his perception of the seriousness of the possible consequences for him if he stood his trial The most obvious reason for his not being accosted by the authorities before he was is that those authorities did not know his whereabouts The applicant s affidavit advances no basis on which he claims to have thought that the lack of contact from the authorities meant that they did not intend to pursue the matter 35 Secondly the applicant claims that he will be prejudiced in his trial because his English solicitor has destroyed his file and because it is possible that potential favourable witnesses may no longer be available In my view the plaintiff has made no showing at all of a real risk of an unfair trial On the contrary he has carefully avoided making any comment as to his attitude to the charge outstanding against him the nature of his defence or the witnesses he might require to support that defence The plaintiff is perfectly entitled to be reticent on these points but his reticence means that he has failed to discharge the onus of proof which is certainly upon him I am very conscious indeed that a fourteen year interval between the alleged offence and the trial may have very serious consequences But these consequences are to be laid at the door of the plaintiff who by his own act prevented a trial taking place thirteen years ago In any event the mere possibility of an unfair trial is insufficient what must be shown is a real risk and demonstrating that is simply not consistent with the reticence which the plaintiff has maintained 36 Thirdly the plaintiff says that the trial may be prejudiced by the television report by Roger Cooke which was broadcast some 4 ½ years ago This report communicates that the plaintiff absconded before his trial and pointedly raises the question of why that was Most importantly the portion of the programme which referred to the applicant very unfortunately contained an unqualified assertion by the interviewer that the applicant was indeed guilty of the offence with which he was charged 37 It must be emphasised that publicity of this sort and in particular an express assertion of the guilt of the person charged is undesirable in the highest degree Considering that the whole point of the television programme was to castigate the English authorities for what the programme makers viewed as insufficient diligence in pursuing fugitive offenders it is ironic that the programme itself by asserting the guilt of this offender itself became a factor suggesting that the trial should not occur 38 The cases of D v DPP 1994 2 IR 465 and Z v DPP 1994 2 IR 476 consider the circumstances in which a trial within this jurisdiction will be prohibited on the ground of prejudicial publicity Though the circumstances are not identical to the present case where delivery for trial abroad is an issue there are aspects of the judgments which suggest the proper approach to the present contentions Firstly the onus of proof would rest on the plaintiff who invokes the spectre of adverse publicity who must show a real risk arising from such publicity that he could not obtain a fair trial Z was a case of media saturation in which it was nonetheless held that a jury properly instructed as to their responsibilities could try the case fairly This is a case of a single publication 4 ½ years ago in which there is ample scope for the fade factor to have played its role in lessening any prejudice 39 The judgment of Kelly J in Quinlivan v Conroy No 2 2000 3 IR 154 discusses authoritatively the provisions which exist in the United Kingdom to guard against a trial becoming unfair by reason of adverse publicity I agree with his conclusions on this subject and on the question of the fade factor of the effect of publicity over time 40 I would not therefore consider that the television programme constitutes an other exceptional circumstance which might lead to the conclusion that it would be unjust unfair or invidious to deliver the plaintiff for trial I reach this conclusion on the individual facts of the case This decision cannot properly be cited in any future case as providing a licence for media comment such as occurred in the present case Indeed any such comment in a future case would be all the more objectionable by reason of having occurred after the Court has clearly expressed its attitude in relation to such comment A very unusual and significant part of this case that it was the accused s own act in absconding which invited the media attention is unlikely to be often repeated Issues for the Court 41 It may be necessary to emphasise that on the hearing of an application for relief under s 50 the Court is concerned to exercise the jurisdiction conferred by the Section and not to exercise some general supervisory jurisdiction over the Garda Síochána or any other police force The Court has recently addressed this topic in Wayne Patrick Lynch v The Attorney General and Ors Supreme Court unreported 24th July 2003 There the High Court made unappealed findings of grave misbehaviour on the part of a garda concerned to execute an English warrant He had offered to bury or lose the warrants in return for assistance in another case and he had falsely denied this on oath before the High Court In the circumstances of the case however this did not lead to the grant of relief to Mr Lynch on the basis that To permit the Garda s misdeeds to have this effect would be to put the agreement between nations at the mercy of any single member of the police force who through malevolence stupidity or a failure to recognise the importance of observing elementary legal principles committed an irregularity It was stressed the approach taken in Lynch was based on the assumption that the Gardaí were under the effective control of their superiors who would take appropriate action and that the position would be otherwise if this assumption were falsified 42 In the present case there is of course no question of any positive misdeed on the part of any member of the Garda Síochána After a period of thirteen years it is perhaps understandable that memories will have faded but disappointing for example that no record exists of the inquiries undertaken by Garda Judge Moreover we are very conscious of the fact of thirteen years is a long period of time during which memories may decay as this case demonstrates and prejudice may accrue or even in some circumstances be presumed But the plaintiff here has put his case on an extremely narrow basis Assuming the lapse of time to be exceptional he has in my view failed to demonstrate any other exceptional circumstance and wholly failed to show that it would be unjust oppressive or invidious to render him for trial in Leeds Conclusion 43 I would therefore dismiss the appeal and affirm the order of the learned trial judge 2003 IESC 60 THE SUPREME COURT 117 02 Denham J McGuinness J Hardiman J IN THE MATTER OF THE EXTRADITION ACT 1965 to 1994 Between OLIVER COLEMAN Plaintiff Appellant and PATRICK O TOOLE Respondent JUDGMENT of Mr Justice Hardiman delivered the 28th day of November 2003 1 This is the plaintiff s appeal from the judgment and order of the High Court Ó Caoimh J of the 10th April 2002 The High Court refused the plaintiff relief pursuant to s 50 2 bbb of the Extradition Acts 1965 to 1994 in circumstances which are set out below Factual background 2 On the 9th June 1989 a man called Hugh Raymond O Gorman was very seriously assaulted in Leeds Yorkshire England 3 The plaintiff in the present proceedings was charged with the offence of causing grievous bodily harm to Mr O Gorman with intent to do him grievous bodily harm contrary to s 18 of the Offences against the Person Act 1861 His trial was fixed for the 16th October 1990 and the plaintiff was released on bail From the affidavit evidence in this case it appears that Mr O Gorman died some sixteen months after the assault on him without recovering consciousness This occurred on the 12th October 1990 The plaintiff broke the conditions of his bail and did not attend for his trial on the 16th October 4 According to the plaintiff s own affidavit I did not attend my trial in the Crown Court in Leeds instead I returned to Shannonbridge Co Offaly in 1990 I have lived in Shannonbridge Co Offaly since 1990 5 It appears that the plaintiff was born in Shannonbridge in 1967 and has lived there most of his life He says that in about 1985 he went to Leeds where he lived with his uncle and subsequently with his father He says that since his return to Shannonbridge in the year 1990 he has lived there He said that he has been signing on for unemployment benefit from July 1993 to May 1999 and from June 1999 until the 13th February 2001 The pursuit of the plaintiff 6 It must be recorded that the evidence put before this Court as to steps taken to pursue the plaintiff following his absconding before his trial in Leeds is incomplete confused and at times self contradictory 7 From the affidavit of Michael Grubb formerly a Detective Chief Inspector in Leeds it appears that following the plaintiff s failure to attend court on the 16th October 1990 he was placed on the British Police National Computer as an absconder Periodic checks were made with the Department of Social Security to see if claims were made by him in the United Kingdom but these were consistently negative Mr Grubb says that as part of his inquiries he made contact with Garda Headquarters in Dublin and was put in touch with a Garda William Judge whom he believed to be stationed in Shannonbridge and who was acquainted with the plaintiff s family He was given the personal telephone number of Garda Judge which he still retains He says that he contacted him on a number of occasions over the following years and was informed on each occasion that the plaintiff had not been sighted in the County Offaly area 8 Diana McKenna formerly a supervisor in the Leeds Warrants Office of the West Yorkshire Police also swore an affidavit She said that in or about October 1998 she checked a file in relation to the plaintiff and noted that a warrant issued by the Crown Court in Leeds on the 16th October 1990 was still outstanding She forwarded the papers to a detective constable to make further inquiries This was Detective Constable Hadley He says that having got the papers he recommenced inquires as to the whereabouts of the plaintiff and wrote to the Gardaí on the 22nd January 1999 His inquiries led to him believe that the plaintiff was resident in Offaly On the 26th March 1999 he swore an affidavit authenticating an arrest warrant for the plaintiff issued in Leeds Crown Court on that date It appears that the plaintiff was arrested on foot of that warrant on or about the 31st May 1999 9 The account offered by the Leeds Police is complicated by certain affidavits sworn by members of An Garda Síochána A retired guard the above mentioned William Judge swore an affidavit He said that he had been stationed in Ferbane Co Offaly for 25 years prior to his retirement in March 1993 He recalled being contacted by telephone by an English policeman in relation to the plaintiff on two occasions in the early 1990s This man asked him if Oliver Coleman was at home Mr Judge said he knew there was a Coleman family in Shannonbridge but he did not know if Oliver Coleman was there or not He says that he explained that he was stationed at Ferbane and Shannonbridge was eleven miles away In a further call he suggested that the caller should contact the Superintendent in Birr 10 Mr Judge says that he made some inquiries on foot of these contacts to establish whether or not Mr Coleman was at home He said I do not now remember the extent of such inquiries or the results thereof 11 This position is further complicated by the fact that there was exhibited in these proceedings a letter from Jim Delaney of the Serious Crime Squad of the Garda Síochána dated the 24th October 1990 This was to Mr Judge and related to the plaintiff It enclosed a photograph of the plaintiff and asked him to verify that it is the same fellow we were talking about Mr Judge however has sworn that he never saw this letter and that he had never spoken to Jim Delaney 12 Aidan Corcoran is a guard stationed at Shannonbridge since October 1988 He said he had never received any written or telephonic communication from the English police in relation to the plaintiff However he says that about September 1991 he received information from an individual to the effect that Oliver Coleman might be wanted on a warrant in England He telephoned Leeds Police Station and spoke to a Sergeant Verty whom he told that Mr Coleman was resident in Shannonbridge He says however that he was told that the Leeds police had no interest in him He exhibited a station telephone log for the 26th September 1991 recording a call to Leeds police on that date However inquires by Detective Superintendent Hemsley of Leeds police says that none of the retired police officers who dealt with the case in Leeds could confirm that such a call was received and that no person with the surname Verty or any similar sounding name was ever engaged on the case or in the warrant department in Leeds The television programme 13 The affidavit of Mr Coleman introduces an alternative explanation for the revival of the pursuit of him He says that in February 1999 he was approached by one Roger Cooke a journalist with Yorkshire Television who questioned him about the death of Hugh Raymond O Gorman He approached him on a public road in Offaly Yorkshire Television subsequently broadcast a programme including some 5 ½ minutes dealing with the plaintiff on the 26th March 1999 The plaintiff says that it was only as a result of Roger Cooke s programme that these proceedings were commenced I believe there is no bona fide intention to prosecute me and that this application is only a public relations exercise Separately he claims that the programme is prejudicial 14 Detective Constable Hadley says that the Roger Cooke programme was of no relevance to the decision to seek his extradition He says that Mr Cooke did not trace the plaintiff until February 1999 which was some time after he the Constable had renewed his inquiries and made contact with the Gardaí 15 None of the witnesses were cross examined with the result that the rather incomplete account which each side has put before the Court has not been fleshed out or tested The plaintiff s contentions 16 The plaintiff claims that he is entitled to be released pursuant to s 50 of the Extradition Act 1965 as amended The portions of this Section relied upon are as follows 1 A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this Section 2 A direction under this Section may be given by the High Court when a court is of opinion that a b bb bbb by reason of the lapse of time since the

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  • findings of fact to allow this court to come to a conclusion with regard to the issue of recognition the case should be remitted to the High Court for a new trial Mr Durcan submitted that the trial judge was in error in making the following findings 1 That the divorce in the Netherlands was granted on 13th July 1994 whereas in fact it was granted on 12th September 1994 2 That the husband was employed by the Irish company as a project manager whereas in fact he was employed by a Dutch company which was a subsidiary of the Irish company 3 That the husband s employment in the Netherlands was for a period of five years subject to review at that time and the possibility of renewal whereas in fact it was an open ended contract 4 That there were no facilities for crèches in the area where the husband and the wife were living and that there was no employment available to the wife whereas the evidence was that the younger children went to a crèche and there was no evidence as to the employment opportunities available to the wife 6 That the idea of returning to work in Ireland in the year 1992 was one of many options considered by the husband and that he did so only in the hope that it might save the marriage whereas there was no evidence that the husband considered any option other than the possibility of taking up a job with the Irish company 7 That the evidence of the husband was that it was always his intention to remain on in Holland whereas this was not the husband s evidence his evidence was to the effect that it was not until the latter part of 1992 that he arrived at a positive decision to stay in the Netherlands 8 That it was envisaged when he took up employment in the Netherlands first that if he wished to return to Ireland an effort would be made to accommodate him whereas the evidence was that the contract was open ended Mr Durcan S C further submitted that the trial judge had failed to make findings of fact in regard to a number of important matters He said that effectively the trial judge s summary of the factual evidence ended in September 1992 and did not deal with the subsequent events ending in the husband s return to work in Ireland in May 1994 Nor had he resolved the conflict of evidence between the parties as to the circumstances in which the wife had returned to Ireland with the children Mr Durcan also submitted that the trial judge had not applied the correct principles of law in two major respects In the first place he had treated the date of the granting of the divorce which he erroneously said was the 13th July 1994 as the relevant date for determining whether the husband was domiciled in the Netherlands In the second place he had treated the appropriate test as being whether the husband would remain in the Netherlands come what may and even if he were without employment whereas the appropriate test was whether he had formed a settled intention permanently to reside in Holland even if that were subject to a caveat that he might leave Holland if he could not find any suitable employment there The domicile of origin of the husband in this case was Irish The factors to be taken into account in determining whether such a domicile of origin has been replaced by a domicile of choice were summarised by Budd J in In Re Sillar Hurley v Winbush 1956 IR 344 in a passage which has been approved of on a number of occasions in this court From a consideration of the case law it is clear that it is a question of fact to determine from a consideration of all the known circumstances in each case whether the proper inference is that the person in question has shown unmistakably by his conduct viewed against the background of the surrounding circumstances that he had formed at some time the settled purpose of residing indefinitely in the alleged domicile of choice Put in more homely language that he had determined to make his permanent home in such place That involves needless to say an intention to abandon his former domicile Where he has made a declaration touching on the matter it must be weighed with the rest of the evidence Such a declaration may be a determining factor but will not be permitted to prevail against established facts indicating more properly a contrary conclusion In applying that test to a person such as the husband in the present case who has left his country of origin and taken up employment in another country for a period of time amounting in this case to seven years it is important to bear in mind that a decision to move one s residence to another country in circumstances of that nature may not be sufficient to discharge the significant onus of establishing that a person has abandoned his domicile of origin and acquired another domicile of choice As Henchy J observed in T v T 1983 IR 29 The period lived abroad may be no more than the external manifestation of the temporary compulsion of circumstances Such bare facts as we have in this case as to the husband s foreign residence do not show the volitional and factual transition which is the sine qua non for shedding a domicile of origin and acquiring a domicile of choice The difficulties attendant on establishing a claim in such circumstances that a person has abandoned his or her domicile of origin and acquired a domicile of choice are well illustrated by the decision in C M v T M In that case a married couple with a domicile of origin in England lived in Ireland from 1979 to 1985 when the marriage broke down At that stage the husband returned to England and initiated divorce proceedings there An issue arose as to whether at the date of the initiation of divorce proceedings he was domiciled in England Barr J said that he was satisfied that the husband was motivated primarily by financial considerations in deciding to come to Ireland in 1979 and take up residence there although he was also satisfied that he and his wife intended to establish their home in Ireland As in this case one of the matters influencing that decision was the nature of the tax regime which would apply to him in Ireland as opposed to the United Kingdom The learned judge went on However it does not follow from the fact that the husband decided to accept the tax and other advantages which Ireland offered that the setting up of a family residence here for an indefinite period established per se an intention on his part to make his permanent home in Ireland and to abandon his domicile of origin It seems to me that there is an important distinction between setting up home for an indefinite period in a particular place and setting up a permanent home there The latter implies that the situation thus created is intended to continue for the foreseeable future and may be altered only in the event of a change of circumstances which is not then in contemplation or anticipated as being likely to happen at a future date but excluding consequences such as the inevitability of old age and natural changes in family circumstances which are not anticipated in the short or medium term On the other hand a home which is established in a particular place for an indefinite period may depend upon the continuance of circumstances which are themselves indefinite as to likely duration In my view a home set up in the latter basis does not have the element of permanency as so defined which is an essential indicator of a change in domicile In that case it was held that the burden of proof of displacing the domicile of origin had not been discharged I am satisfied that applying these well settled principles of law it would not have been possible for the trial judge in the present case in the light of the agreed or admitted facts to hold that the presumption as to the continuance of the domicile of origin had been rebutted I cannot see that any different conclusion would follow if one were to treat the critical period in this case as being that from August to December 1992 as Mr Durcan urged on the basis that the husband s evidence was that it was during this period that he accepted that his marriage had broken down and that he would not be living in the future with his wife and children in Ireland In this context there are two highly relevant passages in his evidence This first is in the Transcript Volume 2 at p 15 20Q Ms Clissmann What was your family s outlook in relation to moving to live in Holland A I think we looked on it as an adventure I don t think I had ever thought we would come back to live in Ireland again I think my ex wife quite liked the idea of Holland There was one other alternative we looked at in Bermuda and that really never amounted to much but Holland was a fairly civilised place and you had a lot of culture a lot of traditions and it was an adventure that we were going to go and do Mr Justice Morris Why would you not come back to Ireland again Have you not got relations friends ties A Sorry I meant to live permanently My family are in Cork My parents brothers and sisters are in Cork But only in the context of holidays not in terms of living A I think maybe when I moved there first I would have had an outlook of who knows where this will take me too but as I lived there and as I got to work with the Dutch people and as I got used to Dutch and to understand the way the economy worked I liked working there and I liked the people there and I liked the art galleries and things like that so to me that was home I didn t think I would uproot myself and go anywhere else I just liked it effectively Mr Justice Morris Was that an intention that you formed before you went there A No Mr Justice Morris Or was it one that you acquired when you were there A Yeah I d say I acquired it once I become comfortable speaking Dutch The second is in the same volume at p 68 as follows 176Q Again just to be clear do you say by the end of 1992 for whatever reason you were not ever going to take that job A I would say by the end of August 1992 I was absolutely sure I was never going to take either of those two jobs Actually what you are saying is actually a key turning point because when I went back to work in Holland I got used to living on my own I was used to living in a house on my own no family around and my mental attitude towards in terms of what was right and what I wanted to do was different I had made an attempt to try and keep the family together by trying to get a job in Ireland that wasn t of any interest to me And then I went back and I started living on my own in Holland and I got used to it and as I said this is where I am comfortable and this is where I am happy I am satisfied that looking at this evidence in the most favourable light possible so far as the husband is concerned it established no more than that the husband in 1992 because of his then circumstances had no immediate intention of returning permanently to Ireland It remained entirely possible that if circumstances altered such as an offer of a post in Ireland more attractive than the ones that he had rejected earlier that year or the prospect of a reconciliation with his wife or a combination of both factors he would have returned to Ireland permanently If that was still his state of mind at the time the divorce proceedings were instituted by him in the Netherlands and there is nothing to suggest that it was not it falls well short of the formation of a settled purpose of residing indefinitely in the Netherlands I think the same conclusion would inevitably follow whether one treated the date of the initiation of the proceedings as the relevant date or as the trial judge in error decided the date on which the divorce was granted I have no doubt whatever that even if one were to accept at any points of conflict the testimony of the husband in preference to that of the wife the overwhelming burden of that evidence was that the continued residence of the husband and the wife in the Netherlands was inextricably linked to their then personal circumstances i e the availability to the husband of congenial and remunerative employment in the Netherlands and the absence of any equivalent opportunities in Ireland Evidence as to a form of residence in a foreign country so dependant on the particular personal circumstances of the person alleged to have abandoned a domicile of origin is very far removed from the evidence of a fixed intention to make one s permanent home in a foreign country which the authorities stipulate as the essential precondition to a finding that a domicile of origin has been abandoned and a domicile of choice acquired I have considered the appeal so far on the basis that Mr Durcan s submission that the trial judge misunderstood the essential case being advanced on behalf of the husband and also failed to resolve critical issues of fact is well founded I think that his judgment read as a whole and even the passage which I have cited where he comes to his conclusions indicates that he was fully aware of the case being made on behalf of the husband but even if he were not I am satisfied that for the reasons given the conclusion that the husband had not discharged the burden of proof as to the abandonment of the domicile of origin and the acquisition of the domicile of choice was in the light of the evidence inevitable That would have also been the situation if he had resolved the conflict of evidence as to the circumstances in which the wife returned to Ireland with the children in August 1992 as Mr Durcan urged he should have done and had decided it in favour of the husband As to the other factual errors in the judgment on which Mr Durcan laid emphasis I am satisfied that these related to peripheral matters which could not have had any significant bearing on the resolution of the central issue as to domicile There remains the letter of the 16th December 1993 in which the husband notified his lawyer of his intention to change my domicile to the Netherlands While the authorities make it clear that a declaration by the person concerned as to his domicile is a factor to be weighed with the rest of the evidence the context in which the declaration is made and its actual form is of importance in determining what weight it should be given While in the absence of any finding by the trial judge I am satisfied to approach that letter on the basis that it was not written by the husband with any intention to deceive any person the fact remains that it was written by him in the context of the divorce proceedings and with the obvious intention on his part of ensuring so far as he could that there was no obstacle to the granting of the divorce In those circumstances little significance can be attached to the letter in the light of all the other evidence in the case The learned trial judge did not deal with another factor in the case which on one view even in the absence of all other considerations might well have proved fatal to the husband s claim to have been domiciled in the Netherlands at the date of the initiation of the proceedings on 2nd March 1994 At that time the husband had been offered the position in Ireland which he accepted the following May at which stage as he conceded he abandoned any intention of living indefinitely in the Netherlands and resumed his residence in Ireland Since the authorities make it abundantly clear that one must look at all the surrounding circumstances in determining whether the husband at the relevant time had formed the settled purpose of residing indefinitely in the alleged domicile of choice it would be unthinkable that one could disregard so significant a factor as the abandonment by him of any plans to remain indefinitely in the Netherlands and his return to Ireland within a matter of weeks rather than months of the relevant date Since however this is not a matter on which the trial judge relied in coming to his conclusion on the question of domicile it should not in fairness to the husband be taken into account in determining this appeal I am satisfied that no useful purpose would be served in the present case by remitting the case to the High Court for a further hearing despite the errors and omissions which have been identified in the judgment under appeal since the admitted and agreed facts in the case could lead to only one conclusion i e that the husband had failed to discharge the burden of proof resting on him of establishing that the domicile of origin had been abandoned and a domicile of choice in the Netherlands acquired I would dismiss the appeal and affirm the order of the High Court THE SUPREME COURT Keane C J Denham J Murray J Hardiman J Geoghegan J 29 130 02 BETWEEN D T APPLICANT RESPONDENT AND F L RESPONDENT APPELLANT AND THE ATTORNEY GENERAL NOTICE PARTY JUDGMENT delivered the 26th day of November 2003 by Keane C J Until the coming into force of the Constitution in 1937 the principles of private international law applied by the courts in Ireland included the rule known as the dependant domicile of a wife This meant in effect that in cases where the rights of parties fell to be determined in accordance with the principles of private international law and in particular by a determination as to where one or both of the parties was domiciled at a particular time the domicile of a wife was regarded for all such purposes as being the same as the domicile of her husband However in C M v T M 1991 ILRM 268 the High Court Barr J held that the rule in question was inconsistent with the provisions of the Constitution and had not survived its enactment That statement of the law was upheld by this court in W v W 1993 2 IR 476 So far as the recognition of decrees of divorce granted by courts of a foreign jurisdiction was concerned the Irish courts applied the principle of private international law that such a divorce would be recognised if it was granted by the court of a jurisdiction in which both parties where domiciled The result was that until the clarification of the law in C M v T M a divorce granted by a court in a jurisdiction where the husband was domiciled would be afforded recognition because that was also treated as the domicile of his wife Section 5 1 of The Domicile and Recognition of Foreign Divorces Act 1986 which did not apply to the divorce at issue in C M v T M provided that For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled In C McG v D W Anor 2000 1 IR 96 it was held by the High Court McGuinness J that where the decree of a foreign court was granted prior to the coming into force of s 5 1 of the 1986 Act the issue as to the recognition of a foreign divorce was still governed by the common law rules of private international law The learned judge in that case held that it was open to the Irish courts in the case of foreign divorces granted before the 2nd October 1986 to modify where necessary the recognition rules based on the common domicile of spouses She was satisfied that having regard to the relevant provisions of the Family Law Divorce Act 1996 and the Family Law Act 1995 the courts should adopt a policy of extending recognition to decrees of foreign courts where either of the spouses was ordinarily resident in the foreign jurisdiction for a period of one year prior to the institution of the relevant proceedings The applicant and the respondent in the present proceedings hereafter respectively the wife and the husband are Irish citizens who were married in Ireland on the 30th August 1980 In the year 1988 they emigrated to the Netherlands with their three children and lived there until 1992 At that point difficulties had developed in the marriage and in circumstances which were to some extent the subject of dispute the wife returned to Ireland in that year with the children The following year she instituted divorce proceedings in the Netherlands in which she also sought an order for payment of interim maintenance An order in her favour for the making of interim maintenance payments was made by the Dutch court in February 1994 but thereafter she did not pursue the application for a divorce On the 2nd March 1994 however the husband instituted divorce proceedings in the Netherlands and a decree of divorce was granted by the Dutch court on 12th September 1994 On the 6th July 2000 proceedings were instituted by the wife in the High Court claiming a decree of judicial separation and certain ancillary reliefs An order was made by consent that a preliminary issue be tried herein the issue being whether the husband is or is not entitled to a declaration that the validity of a divorce obtained on the 13th day of July 1994 under the civil law of the Netherlands is or is not entitled to recognition in this State pursuant to the Family Law Act 1995 s 29 1 d and or e The reference to a divorce having been obtained on the 13th July 1994 is an error as already noted the divorce was not granted until the 12th September 1994 The order also provided for the joining of the Attorney General as a Notice Party in the proceedings The preliminary issue was heard by Morris P in a trial which lasted five days and in which oral evidence was given on behalf of the husband and the wife It is clear from the transcript and the reserved judgment delivered by the learned President on the 23rd November 2001 that the case advanced on behalf of the husband had two limbs The first was that at the time the divorce proceedings were instituted in the Dutch courts the husband had acquired a domicile of choice in the Netherlands and that accordingly the divorce granted by the Dutch court was entitled to recognition in this jurisdiction The second limb was that if he had not acquired a domicile of choice the court should apply the modified rule of private international law adopted by the High Court in McG v W in which case since it was accepted that he had been ordinarily resident in the Netherlands for a period in excess of one year at the time the proceedings were instituted the decree granted by the Dutch court was entitled to recognition on that basis The learned President having dealt with the facts and what he considered to be the applicable principles in his judgment rejected both limbs of the husband s case and accordingly determined that the divorce granted by the Dutch court was not entitled to recognition in this jurisdiction A notice of appeal was served on behalf of the husband but in the written submissions lodged on his behalf it was made clear that the appeal against that part of the judgment which rejected the alternative case on behalf of the husband that the modified rule adopted in McG v W should be applied was not now being pursued In those circumstances the Notice Party took no further part in the hearing of the appeal This court accordingly at this stage is solely concerned with the issue as to whether the husband was at the relevant time domiciled in the Netherlands with the result that the divorce granted by the Dutch court should be recognised by the High Court It is now necessary to consider the facts in greater detail The husband is a qualified civil engineer and accountant In 1987 he was employed in Ireland by a leading firm of chartered accountants The wife had been employed as a public relations officer in a large organisation but had given up that position with the arrival of the children In 1987 the husband was offered a position with the Dutch subsidiary of a major Irish company This was of course at a time when the economic outlook in Ireland was bleak There were also tax advantages in moving to the Netherlands The parties were agreed in the circumstances that the move to the Netherlands was in the interest of themselves and their children The applicant described the contract with his new employers as open ended although it was envisaged that it would last for at least three to five years The decision having been made to move to the Netherlands the family home in Ireland was sold and the husband resigned from the clubs of which he was a member in Ireland The evidence of both husband and wife was that they adjusted well to living in the Netherlands Both of them learned Dutch and their children went to school in the Netherlands However difficulties developed in the marriage and as already noted the wife returned to Ireland in 1992 with the children The husband gave evidence that he was opposed to her decision to move back to Ireland with the children but that when this happened in August 1992 he reluctantly accepted that his marriage was at an end He also gave evidence however that prior to her departure his wife had suggested that he should talk to his employers about the possibility of his obtaining a job with the Irish company in Ireland He said in evidence that the two jobs which were suggested as being available were of no interest to him This version of events was disputed in evidence by the wife who said that her understanding at the time the Irish jobs were on offer was that her husband was also anxious to return to Ireland and that she had gone to Ireland with the children in order to put in place arrangements for the return of the entire family She said that during that period she had found schools for the children She agreed that when her husband was given the full terms of the positions available to him in Ireland he was very unhappy with them It is not however in dispute that from August 1992 the wife and children were living in Dublin and the husband was also visiting them fairly regularly and spent two weeks at Christmas with them Nor is it in dispute that at that time i e the Christmas New Year period of 1992 1993 they both accepted that the marriage had broken down and that there should be a separation agreement While for the purposes of this judgment it is unnecessary to go into any detail the arrangements for a separation agreement did not go smoothly and this led to the decision of the wife to institute the proceedings in the Netherlands with a view to getting an order for the payment of maintenance by the Dutch court The husband gave evidence that in January 1994 he was headhunted by a large civil engineering firm in this jurisdiction He said that he initially turned down the offer but that they were unwilling to accept his refusal and that he had further discussions with their representative at an international rugby match in Dublin some time later At the end of April he agreed to take the job and he returned permanently to Ireland in May 1994 It should finally be noted that on the 16th December 1993 the husband wrote as follows to his lawyers in the Netherlands My wife has stated her intention to apply to the Dutch courts for a divorce She has chosen for the application of Dutch law under Article 1 part 4 of the 1981 Divorce Law The Dutch court has jurisdiction to hear this case because of Article 814 and the fact that I have lived for more than twelve months in the Netherlands I agree to the application of Dutch Law In connection with this I would like to notify you of my intention to change my domicile to the Netherlands I would be grateful if you would acknowledge receipt of this letter In the course of his judgment the learned President having referred to what he considered the applicable principles of law summarises his conclusions as follows In this case I would be prepared to accept that the respondent became fond of living in Holland and that he was content to remain there for the purposes of his work I would have no difficulty in accepting that if X Ltd had renewed and continued to renew his contract in Holland all other things being equal he would have been prepared to remain there However I am equally sure that if for any reason his employment was discontinued with X and if he was unable to obtain a suitable position in Holland he would have been ready and willing to travel to another country to pursue a job opportunity I can never foresee the possibility that the respondent would remain in Holland come what may and even if he were without employment In my view he has not satisfied the positive element of the test No more do I consider that he formulated any intention of abandoning Ireland as his domicile of origin The only evidence which is consistent with this intention was the sale of the family home and the cancelling of his membership of clubs If one weighs these factors against the evidence that he returned to Ireland for his summer holidays that he visited his family in Ireland on a number of occasions that he arranged for his wife to return to Ireland when difficulties arose in the marriage in my view it is clear beyond doubt that he never abandoned his domicile of origin Accordingly I hold that on the 13th July 1994 being the date upon which the divorce was obtained in the Netherlands the husband was domiciled in Ireland On behalf of the husband Mr Durcan S C submitted that in reaching these conclusions the trial judge made errors of law and fact such as to render the trial so unsatisfactory that his decision should be set aside by this court and that the court should grant a declaration that the divorce is entitled to recognition under Irish law Alternatively he submitted that if this court was of the view that there were not adequate findings of fact to allow this court to come to a conclusion with regard to the issue of recognition the case should be remitted to the High Court for a new trial Mr Durcan submitted that the trial judge was in error in making the following findings 1 That the divorce in the Netherlands was granted on 13th July 1994 whereas in fact it was granted on 12th September 1994 2 That the husband was employed by the Irish company as a project manager whereas in fact he was employed by a Dutch company which was a subsidiary of the Irish company 3 That the husband s employment in the Netherlands was for a period of five years subject to review at that time and the possibility of renewal whereas in fact it was an open ended contract 4 That there were no facilities for crèches in the area where the husband and the wife were living and that there was no employment available to the wife whereas the evidence was that the younger children went to a crèche and there was no evidence as to the employment opportunities available to the wife 6 That the idea of returning to work in Ireland in the year 1992 was one of many options considered by the husband and that he did so only in the hope that it might save the marriage whereas there was no evidence that the husband considered any option other than the possibility of taking up a job with the Irish company 7 That the evidence of the husband was that it was always his intention to remain on in Holland whereas this was not the husband s evidence his evidence was to the effect that it was not until the latter part of 1992 that he arrived at a positive decision to stay in the Netherlands 8 That it was envisaged when he took up employment in the Netherlands first that if he wished to return to Ireland an effort would be made to accommodate him whereas the evidence was that the contract was open ended Mr Durcan S C further submitted that the trial judge had failed to make findings of fact in regard to a number of important matters He said that effectively the trial judge s summary of the factual evidence ended in September 1992 and did not deal with the subsequent events ending in the husband s return to work in Ireland in May 1994 Nor had he resolved the conflict of evidence between the parties as to the circumstances in which the wife had returned to Ireland with the children Mr Durcan also submitted that the trial judge had not applied the correct principles of law in two major respects In the first place he had treated the date of the granting of the divorce which he erroneously said was the 13th July 1994 as the relevant date for determining whether the husband was domiciled in the Netherlands In the second place he had treated the appropriate test as being whether the husband would remain in the Netherlands come what may and even if he were without employment whereas the appropriate test was whether he had formed a settled intention permanently to reside in Holland even if that were subject to a caveat that he might leave Holland if he could not find any suitable employment there The domicile of origin of the husband in this case was Irish The factors to be taken into account in determining whether such a domicile of origin has been replaced by a domicile of choice were summarised by Budd J in In Re Sillar Hurley v Winbush 1956 IR 344 in a passage which has been approved of on

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  • engineer in cross examination that on his calculations the evidence of Mr Lennon as to the position of the bus could not be correct 22 The judgment of the learned trial judge is not in the form suggested in the judgment of McCarthy J in Hay v O Grady 1992 1 IR 210 At page 218 of the report he emphasised the importance of a clear statement by the trial judge of his findings of primary fact the inference is to be drawn and the conclusion that follows 23 The important evidence is recited in the judgment but on important parts of it no conclusion is expressed I speak in particular of the engineering evidence Since the plaintiff had no recollection of what happened after he braked it is clear that his entire case was based on inference and that circumstance further underlines the importance on a clear statement of the findings of primary fact and the particular inferences drawn from them The complexities of the case as presented were such that three days were occupied in the exploration of the liability aspect only of a simple traffic accident In those circumstances it is regrettable that the learned trial judge was not assisted at the conclusion of the evidence by brief submissions from the parties The Court has deprecated a similar omission in a number of previous cases 24 In the circumstances of the case and particularly the mode of presentation of the plaintiff s case I am satisfied that the learned trial judge must have reached his decision on the basis of inference from the established facts summarised above In particular his decision appears to have been based on inferences from the circumstantial evidence of the position of the vehicles the configuration of the roadway the skid mark and the engineering evidence about these matters In this regard as was observed by McCarthy J in the case mentioned above an Appellate court is in as good a position as the trial judge Decision 25 It is a feature of the case that the defendant s vehicle was only an inch or so narrower than the carriageway on which it was constrained to drive Their engineer Mr Watson frankly said that he would expect the driver to give himself a few inches of clearance from the margin on the left hand side of the road I would not expect him to drive tight to the grass only in the event that he met an oncoming vehicle 26 He said that under normal circumstances he would expect a driver to leave a margin of 6 inches to a foot but on approaching a bend in either direction he would expect him to stay as close as he can to the left hand margin at those points 27 I believe there is substance in the critique offered by Mr Watson of Mr Mooney s reconstruction of the accident His theory depends on the proposition that the bus was travelling along the line of the skid mark for a significant distance prior to the skid marks commencement but this assumption seems invalidated by the fact that there was undisputed evidence that the bus swerved or veered to the left before braking Indeed the learned trial judge found as a fact that this had happened 28 It seems to me therefore that looking at the best case the plaintiff can make the bus may have been slightly over the centre line at a point of 50 to 60 yards before the impact This may have been less than a foot and certainly is not much more than that This is on the basis that if he were six inches from his left hand margin he would have been five inches over the white line The maximum distance across the line for which Mr Mooney contended was two feet Since this distance does not allow for the fact that the bus s line of travel was plainly mistaken by him he did not allow for the undisputed swerve before braking it is clearly too great This is not to discount the defendant s evidence that he was not at all over the central line but merely to look at the height of the plaintiff s case realistically assessed as a hypothesis 29 Even on that basis the plaintiff had ample room to pass the defendant on his the plaintiff s wider carriageway even if the defendant had taken no action I am far from convinced that a minor crossing of the white line bounding the narrower carriageway would in itself amount to negligence on the part of a driver of a wide vehicle travelling at moderate speed But even if such crossing did occur I do not believe that in the circumstances of this case it played any causative role in the accident The plaintiff if driving with reasonable care had ample opportunity to pass the bus safely or if he mistakenly believed that he had not room to do so to stop In fact he lost control of his vehicle and this was the direct cause of the accident I do not believe that his loss of control can be attributed to any act or omission on the part of the defendant or that it was the foreseeable consequence of any such act or omission The loss of control on the findings of the learned trial judge was probably due to the incorrect angle at which the plaintiff entered the acute bend Pothole 30 I will deal briefly with this topic since it occupied a considerable amount of time at the hearing At the end of Mr Mooney s direct evidence counsel for the plaintiff began a question If it were a case the bus was attempting to avoid this depression or manoeuvre this depression 31 There was an objection that there was no evidential basis for the question Counsel for the plaintiff eventually said I won t pursue it but if there is to be evidence unfolding from the defence that the bus driver in fact was making an attempt to circumnavigate the depression if your Lordship will give me leave to recall Mr Mooney That was agreed But the bus driver did not say this He said that the pothole and the depression in the road were not present at the time of the accident The topic was taken up by the defendant s engineer who said that a pothole could occur overnight cracking on the road would take longer but the depression within the area of cracking could occur very rapidly 32 Immediately before the hearing of this appeal the plaintiff filed additional written submissions in which he said that the defendants had failed to deal adequately properly or credibly with the pothole issue This it was submitted touches the credibility of the first named defendant The plaintiff said it was not until this gentleman gave evidence that the case that there was no pothole or depression on the road and therefore that it was not necessary for him to drive the bus around it had been made Furthermore it was said that this proposition should have been put to Mr Carolan another engineer on behalf of the plaintiff who had taken photographs showing the depression 33 In my opinion there is no substance in these criticisms Mr Carolan did not say that there was any pothole or other feature on the road at the time of the accident but merely provided evidence of what the position was about five weeks later It is clear from the plaintiff s counsel s statement quoted above that in raising the topic of potholes with the engineer she was merely providing for the possibility that the defendant might make the case that a pothole played some role in the accident He did not do so 34 The plaintiff also referred to a solicitor s note of District Court proceedings in this matter and complains that the first named defendant who seems to have been a prosecution witness in the District Court never gave evidence to the effect that there was no pothole present in the road In my view this is a meaningless criticism of the defendant who had never claimed there was a pothole or any other irregularity in the road surface which had any role in the accident The most he seems to have done and only when it was expressly put to him in cross examination in the District Court was to agree that he might avoid a pothole if there was one The defendant did not rely on any pothole or other feature of the road surface if the plaintiff wanted to do so it was clearly for him to establish the existence of such a feature at the time of the accident either by direct evidence expert testimony or a combination of those The defendant was not obliged to put the non existence of a pothole to a witness who did not say that there was one at the relevant time Conclusion 35 I would allow the defendant s appeal and substitute for the High Court order an order dismissing the plaintiff s claim In those circumstances it is unnecessary to consider the appeal on damages 2003 IESC 58 THE SUPREME COURT 140 02 Keane C J Hardiman J Fennelly J Between EUGENE LENNON Plaintiff Respondent and PATRICK REILLY and BUS ÉIREAN IRISH BUS Defendants Appellants JUDGMENT of Mr Justice Hardiman delivered on the 25th day of November 2003 1 This is the defendants appeal from the order of the High Court Budd J made the 23rd day of October 2001 By this order the Court found that both the plaintiff and the defendant were negligent in respect of an accident in which their respective vehicles were involved that the degree of their respective fault was 50 each and that the value of the plaintiff s claim assuming full liability was 710 145 00 Having regard to the degrees of fault the plaintiff was awarded 355 072 50 From the transcript and other records of the hearing it appears that the case first came into the list on the 11th May 2001 and was heard on the 15th 16th and 17th May 2001 On the 15th May the learned trial judge decided to deal with the liability issue first He gave judgment on that issue on the 17th May leading to the result stated above The issue of damages was dealt with at hearings on four further days and was the subject of a further judgment delivered on the 23rd October 2001 2 I intend to deal first with the issue of liability Factual background 3 On the 19th October 1995 the plaintiff was driving his Opel Astra motor car on a small country road between Nobber and Drumconrath Co Meath He had left home at about 7 40am in order to give his 17 year old daughter a lift to work He had travelled some eight or nine miles and made one stop when he came to a place where there is a signpost on the right hand side of the road pointing towards the opening of a small road to Lough Bracken on the other side of the road This is in fact the widest part of the road it is 17foot 6 inches from verge to verge at or near the point of impact At the time there was a continuous white line along the centre of the road The plaintiff s carriageway was 9 foot 3 inches wide and the defendant s 8 foot 3 inches At or near this point the plaintiff s vehicle was involved in a collision with a school bus driven by the first named defendant and owned by the second named defendant The plaintiff s car was about 13 feet long and 5 foot 6 inches wide The defendant s bus was 8 foot 2 inches wide and about 40 feet long Both drivers ascended an incline as they approached the junction with a small road that goes down to the lake This area was the summit of the incline It was also the apex of a sharp bend described in evidence as right angled and very severe Accordingly each driver s view of traffic coming in the opposite direction was restricted 4 The accident was attended by a member of the Garda Síochána who drew a sketch of the scene From this and from the evidence at the trial it emerged that the guard found the bus on the left hand side of the road facing towards Nobber which had been its direction of travel on the Drumconrath side of the junction This bus was well up on the grass margin the front right hand side of the bus was 7 feet from the white centre line on the road and the rear of the bus was 2 feet from the line The entire of the bus was on its correct side of the road There was an Opel Astra the plaintiff s car which was crossways on the road with the front of it stuck into the side of the bus There was a skid mark some 13 ½ feet long from the right front wheel of the bus towards the rear There were no other skid marks From glass and mud on the road the garda identified the point of impact as being 3 feet from the white line on the bus s correct side more or less along the line of the skid mark The guard s identification of the point of impact was accepted by both sides both at the trial on the hearing of this appeal 5 It therefore appears that the car collided with the bus on the car s incorrect side of the road at a moment when the bus was travelling towards the margin of the road on its own side 6 There was no serious dispute as to speed both vehicles were travelling about 25 miles per hour The weather conditions were dry but the road was slightly damp and as described by the plaintiff greasy The respective accounts of the accident 7 The plaintiff said that he was at the crown of the bend when he saw the bus It was about 50 or 60 yards away He said the bus was coming around the corner on my side of the road it was out maybe 4 foot on my side of the road He said he had no option but to brake because he thought there was going to be a head on collision When he braked he said his car must have skidded In cross examination he said the car must have skidded across the road This however was inference or deduction on his part because when I braked I don t know what happened after that 8 The plaintiff was generally supported by the evidence of his daughter who was then 17 She said as they were coming around the bend she could see the bus coming around the opposite side of the bend and it was coming out across our side of the road She estimated that 2 or 3 feet of the bus was on its incorrect side of the road She said that having seen the bus automatically I jumped straight down from the passenger seat underneath the dashboard She heard but did not see the collision between the vehicles 9 The first defendant the bus driver said that as he approached the bend he saw the car coming around the corner It was on its own side of the road as far as he could see but he said he knew immediately that the car was not going to make it past him He swung his bus towards the grass margin and he stood on the brakes The car which was on the bend came straight across into him It struck the bus behind its front wheel The seat above the wheel was pushed upwards and its occupant thrown out of the seat He said his bus was practically stopped when the collision occurred he felt it could have slid forward another 2 feet After he opened the door the bushes at the side of the road were sticking out into the door opening 10 The plaintiff s attention was drawn to an area of cracked surfacing and dipping in the roadway as shown in the photograph taken some five weeks after the accident He said that he had not seen it on the roadway and the first time his attention had been called to it was in the course of a district court hearing about the accident 11 The defendant denied that he was at any stage partially on his incorrect side of the road as alleged by the plaintiff He said that if he had been in the position alleged the back of his bus would have swung around blocking the road when he headed for the verge on his own side 12 In prolonged cross examination the defendant repeatedly stated that he had seen no pothole on the road on the morning of the accident No one had mentioned a pothole to him until the District Court hearing about nine months after the accident The defendant was put under huge pressure to concede that there was a pothole on the road that day but declined to do so There was also put to the defendant a theory expounded by an engineering consultant on behalf of the plaintiff This was to the effect that by extrapolation from the direction of the skid mark the back of the bus must have been between 1 and 2 feet on its incorrect side of the road at the time he saw the car Again the defendant was put under severe pressure on this point which he courteously but emphatically rejected He stated that

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  • very important medical information In addition however she was privy to the terms of DMC 4 Finally she presided the Medical Board which was charged with the task of classifying the Applicant medically It does not appear to me that there was anything in the slightest improper or even inappropriate about any of the foregoing The circumstances did however call upon Commandant Murphy to communicate in simple terms to the Applicant the implications of her condition for the purposes of the examination by the Medical Board What Commandant Murphy according to her own affidavit told the Applicant was that there could be a problem with her career in the Navy because she would have to be in the highest grade to pass out of recruit training into full time service and I was afraid that a diagnosis of Coeliac Disease could prevent final approval Commandant Murphy has also sworn that she repeatedly told the Applicant that from her health point of view the fact that she was now on a gluten free diet was good it was not good for her career because she might not be finally approved i e she might not be able to continue in the service It seems to me that these statements represent clear and specific warnings to the Applicant sufficient to put her on notice that her coeliac condition could prevent her being able to continue in the Defence Force In an affidavit in reply the Applicant says that she remembers Commandant Murphy saying that she was optimistic about my health but pessimistic about my career She says that she had no idea that this meant she would not pass out She did not take too much notice as she assumed that it would only affect my promotional prospects in the Navy The learned High Court judge found that at no time prior to or throughout the medical examination was the Applicant informed of the most serious outcome which could result from such an examination He went on to say that she was never alive to the real reason for holding such an examination With respect to the learned judge he appears to have overlooked the following statement in the Applicant s grounding affidavit At the conclusion of my training and in order to pass out and be appointed as a permanent member of the Defence Forces I was compelled to undergo an examination by the Medical Board She also swore that the Medical Board was required pursuant to Defence Force Regulations to determine my medical classification She then proceeded to deal in detail with the implications DMC 4 Admittedly it is not clear whether she was aware of DMC 4 in advance of her medical assessment and I will not assume that she was These are judicial review proceedings The evidence is given on affidavit The full resolution of conflicts of fact may require the cross examination of deponents The burden of proof is on the Applicant No attempt was made to cross examine Commandant Murphy Her evidence cannot simply be ignored It is moreover supported by the clinical note of 15th September The Applicant has acknowledged that she was told that her coeliac condition might be bad for career It would be unreasonable in my view to impose a greater burden on the Army authorities than to make recruits aware in simple terms of the nature and implications of the medical examination If Commandant Murphy gave the Applicant the warnings which she has claimed to have given she sufficiently discharged that burden In my view the Applicant has not discharged the burden upon her of showing that she was denied a fair hearing or fair procedures I then turn to the second point decided by the learned High Court judge He concluded from the affidavits of Lt Col Monaghan and Colonel Collins that once Coeliac s Disease was identified the case was determined It seems to me that it is necessary to examine both the terms of DMC 4 and the role of Medical Boards in interpreting and applying such instructions Article 66 1 of DFR A 12 provides that classification shall be carried out in accordance with instructions which shall be issued by the Director Medical Corps Under DFR A 12 as a whole Medical Officers and on appeal Medical Boards perform this function The fact that this is in its entirety a medical process is confirmed by the provision in Article 66 2 that the decision of a Medical Board is final I would accordingly start from the proposition that the court is being asked to pronounce upon medical judgments made by experts In addition these judgments are made in a military context by military officers with medical qualifications It is in that context that the interpretation of DMC 4 should be considered It is clear that if taken literally there is conflict between paragraphs 14 and 2 of DMC 4 The former is more than explicit in providing that sufferers from Coeliac s Disease should NOT be graded higher than Constitution 3 Paragraph 2 however states that the statements in DMC 4 are NOT always to bind the Medical Officer or Medical Board It goes on to say that each case must be decided on its merits In my view it is perfectly possible for a Medical Board to evaluate the individual weight to be attached to each of the statements while reconciling the objectives pursued with the general admonitions contained in paragraph 2 Some of the statements in DMC 4 are expressed in terms which connote broad discretion some are relatively more prescriptive and some such as paragraph 14 express something amounting to a command Sufferers from mild acne should be graded Constitution 1 while those with severe pustular acne should be graded Constitution 3 AIDS sufferers however will be graded Constitution T or X Paragraphs use terms such as should be depending on would normally should be having regard to may be graded But drug abuse is deemed to be incompatible with military service DMC 4 covers a range of medical and related conditions reflective of all foreseeable medical conditions and behaviour with medical implications In my view it is the designated experts and they alone that should perform the function of assessing Constitution grades for military personnel in accordance with the criteria provided within the ordained regulatory scheme It is of course the case that decisions of Medical Boards are amenable to Judicial Review However I venture to suggest that the hurdle of irrationality will be high one McKechnie J found for the Applicant on the ground that the Medical Board rigidly adhered to DMC 4 and did not consider the individual merits of the Applicant This conclusion was reached under the first heading of the ground for the Judicial Review namely the unreasonableness or irrationality of the decision Patently however they are not the same thing The decision of the Medical Board would be irrational if no reasonable body of persons performing the function of medical assessment which was performed in this case could have reached the decision they did Put in that way the Applicant does not in my view come anywhere near discharging the required onus The reasoning of Lt Colonel Monaghan which I have quoted seems perfectly reasonable and even plausible Dr Cronin of course disagrees He believes that it is perfectly possible for military personnel to serve while following a gluten free diet But there is nothing irrational about disagreeing with him particularly by assessing the implications of the coeliac condition for military service In reality the Applicant has made a different argument namely that the Medical Board misinterpreted DMC 4 It applied paragraph 14 rigidly and ignored paragraph 2 I have already said that I am satisfied that it is the Medical Board alone that should be allowed to perform the task of allocating appropriate weight to paragraphs 2 and 14 Clearly paragraph 14 weighed heavily But in my view the Medical Board was entitled to give it great weight having regard to the imperative terms used It has to be acknowledged that the Minister has not been a model of clarity in the positions he has taken on this point In the Statement of Opposition he has claimed not to have acted inflexibly and to have considered the individual position of the Applicant The affidavits sworn in support do not however support this position Commandant Murphy who presided at the Medical Board swore that in accordance with DMC s instructions which advise placing a person with Coeliac Disease in Constitution Grade 3 we gave her the category 80 31 111 Colonel Collins whose appeal decision may not be strictly relevant seems to adopt a similar position The Medical Board was required to classify the Applicant in accordance with the instructions and for the purpose of deciding whether she should be finally approved For this purpose the Board was entitled to consider the proper classification of the Applicant for the purposes of passing out to permanent military service and in the light of her coeliac condition In my view the decision of the Medical Board and hence the decision to discharge the Applicant was not irrational I would allow the appeal and dismiss the application for certiorari THE SUPREME COURT Appeal No 101 2002 Hardiman J Geoghegan J Fennelly J BETWEEN Maria Fitzgerald Applicant Respondent and Minister for Defence Ireland and the Attorney General Appellant Respondent JUDGMENT delivered on the 19th day of November 2003 by FENNELLY J This is an appeal from a judgment of McKechnie J He granted orders of certiorari to the Applicant Respondent the Applicant a navy recruit quashing a decision to discharge her from the Defence Forces on the ground that her appointment had not been finally approved The reason for her discharge was that she had been discovered to be a coeliac The Facts The Applicant enlisted in the navy on 5th July 1999 She had undergone a medical assessment prior to enlistment In the summer of 1999 she was suffering from a persistent respiratory tract infection She was twice admitted to the Military Medical Facility at Collins Barracks Cork and then to University College Hospital It came to be suspected that she was suffering from coeliac s disease Commandant Mary Murphy a medical doctor and a member of the Medical Corps of the Defence Forces ordered tests including a coeliac antibody screen which proved positive Commandant Murphy advised the Applicant that it looked like she had coeliac s disease Commandant Murphy arranged for the Applicant s admission to University College Hospital on 1st September 1999 Commandant Murphy made a clinical note on 15th September 1999 as follows ability to remain in service Coeliac Disease Grade 3 Commandant Murphy has deposed on affidavit to the fact that she told the Applicant on several occasions about this time that there could be a problem with her career in the navy because she would have to be in the highest grade to pass out of recruit training and that she was afraid that a diagnosis of Coeliac s disease could prevent final approval In reply to this the Applicant has sworn that her only recollection is that Commandant Murphy said that she was optimistic about my health but pessimistic about my career She swore that she had no idea what these words meant or that it meant that she would not pass out She assumed that it would only affect her promotional prospects in the navy In the event the coeliac diagnosis was confirmed on 19th October 1999 in a letter from a Registrar at University Hospital to Commandant Murphy This had been preceded by a verbal confirmation also to Commandant Murphy on 12th October On 6th October the Applicant presented to another medical officer Commandant Gerard Kerr for medical grading classification a procedure which as will appear is necessary to the process of final approval of recruits for permanent service On 21st October the Applicant was called to appear before a Medical Board consisting of Commandant Murphy presiding and Commandant Kerr The Medical Board had before it the Applicant s file containing her complete medical record In addition and crucially it had before it instruction No 4 of the Director Medical Corps DMC 4 one paragraph of which set out fully later in this judgment under a reference to coeliac s disease states that personnel requiring gluten free diets should not be graded higher that Constitution 3 In order to pass out a recruit would have to have a Constitution Grade of at least 2 The Board classified the Applicant accordingly and recommended that she not be finally approved in accordance with DFR A 10 paragraph 58 a On 2nd November the Applicant was paraded and was told that the Medical Board had directed that she be classified as a person not having been finally approved She was discharged from the Naval Service on this ground She had served for 158 days and was otherwise qualified for final approval as she had successfully completed all other elements of her training She was informed of her right to appeal in writing within seven days She stated in her appeal that she had been examined by Dr Cornelius Cronin a top specialist in coeliac s disease and that he had informed her that there were only minor traces of coeliac disease in her tissue which would have no effect whatever on her if she did not eat food containing wheat barley or rye She attached a copy of Dr Cronin s letter to her notice of appeal She said that she would have no difficulty in adhering to such a gluten free diet Dr Cronin in his letter said I myself believe that coeliac disease should not be defined as an impairment or disability at all Anyone with a modicum of intelligence should have no difficulty adhering to a gluten free diet either at sea or when ashore or even in combat conditions The appeal was heard and considered by Colonel Maurice Collins Director of the Medical Corps but rejected by him In his affidavit in these proceedings Colonel Collins does not advert at all to Dr Cronin s report but deposes that a failure to adhere to the appropriate diet can result in severe ongoing symptoms and may lead to major complications He also swears that operational duty may last for quite long periods and that despite best efforts there can be no guarantee of the continual supply of essential dietary foods Lt Colonel Monaghan Deputy Director of the Army Medical Corps in an affidavit deposes to the reasons for the classification of the Applicant as Constitution grade 3 He says that this was done in line with DMC 4 He also deposes as follows 15 As the Applicant s health is very much dependant on her strict compliance with a gluten free diet and as diet cannot be readily accommodated or guaranteed within the Defence Forces ration scales particularly when the Applicant would be engaged in sea going and collective field training or overseas services which may last for a considerable length of time it would be irresponsible of the Naval Authorities and indeed a failure of its duty of care to the Applicant to deploy the Applicant in such circumstances Since the normal supply of all items including food to personnel deployed on active service is by military systems cognisance has to be taken of the fact that these systems are seldom such that they can guarantee supply of special dietary items to troops in the field Any interruption of the gluten free diet would cause an unacceptable risk to the health of the Applicant and therefore the Applicant was graded Constitution 3 16 Persons who have been discovered to have Coeliac Disease subsequent to final approval are then graded Constitution 3 and are restricted with regard to the range of duties they are considered suitable for For example in other words they are not deployed in combat areas whether as combatants or as peace keepers as they may be cut off from their sources of supply and there may be severe interruption of supplies of items essential to the maintenance of their health The Regulations All the foregoing took place in accordance with the Defence Force Regulations DFR which though statutory instruments adopted and passed pursuant to the Defence Acts are exempt from publication Order 58 of DFR A 10 deals with discharge from the Defence Force Paragraph a provides When a recruit is not finally approved for service he will thereupon be discharged with all convenient speed DFR A 12 deals with medical treatment in the Defence Force Article 61 2 requires that recruits be classified before being finally approved Article 66 1 provides that classification is to be carried out in accordance with instructions which shall be issued by the Director Medical Corps Articles 70 to 74 of DFR A 12 lay out a detailed scheme of medical classification Some headings deal with specific matters such as military fitness keenness of vision colour vision keenness of hearing The relevant matter for present purposes is in Article 71 2 headed Constitution Grade 3 under this heading is explained in these terms Personnel with moderate impairments or disabilities who have a chronic medical condition which requires supervision and treatment more frequently than every six months or where an unexpected interruption of treatment will cause an unacceptable risk to health As already stated this is below the grade required for recruits who must reach grade 2 at least DMC 4 was drawn up pursuant to DFR A 12 Article 66 and commences by stating that it is to assist Medical Officers and Medical Boards in the classification reclassification of personnel Paragraph 2 states The statements are NOT intended always to bind the Medical Officer and Medical Board but to place the officer or soldier in the suggested grade for it is recognised that

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  • say so and there is no justification in the court adding words which are not there The expression midwifery services could only be given some special interpretation as distinct from the ordinary natural interpretation if there was some other provision in the section or indeed in the Act which clearly indicated that it was to have such a special meaning But subsection 3 of section 62 is not such a provision That subsection simply deals with what is to happen if there are in fact home midwifery services provided and an eligible woman avails of those services The subsection requires that the health board should provide without charge obstetrical requisites listed in regulations made by the Minister It has no relevance whatsoever to the question of whether there is an obligation to provide home midwifery services In my opinion subsection 1 cannot be interpreted as requiring such services It would be reasonable to interpret subsection 1 as requiring a health board to make available appropriate medical surgical and midwifery services But that obligation would be fully complied with by the provision of medical surgical and midwifery services within the confines of a hospital I turn now to the point which arises only in the Brannick case This is the argument that it is discriminatory for one health board not to provide home midwifery services of a kind which other health boards do provide I can find no justification for this argument Section 62 of the Health Act 1970 does not lay down a national prescription as to how these services are to be provided It leaves it to the individual health board That must mean that each health board is entitled to consider the matter itself and there may obviously be different policies in different boards Unless a health board was to adopt a wholly unreasonable policy its decisions in this regard cannot be impugned Apart from what is contained in the papers before the court it is common knowledge that there is widespread difference of opinion within medical circles as to the desirability or otherwise of home births The policy of the East Coast Area Health Board has been set out in the affidavit of Dr Brian Redahan who is general manager of that area health board He has stated that within the functional area of that board there are comprehensive medical surgical and midwifery services available for expectant mothers and their unborn children He explains that the view of his board is that consultant staff maternity units are deemed to be the safest environment for deliveries especially in the event of the many complications that can arise Dr Redahan goes on to assert that even if Ms Brannick s construction of section 2 was accepted the domiciliary services claimed could only be provided on behalf of the board by registered medical practitioners who had contracts with the respondent for the provision of such service and he goes on to say that there are no medical practitioners in the functional area who have entered into such contracts There appears to be nothing unreasonable in the policy of the East Coast Area Health Board It is irrelevant that some other Health Boards may provide limited home midwifery services There is no unfair or unlawful or still less unconstitutional discrimination I would dismiss all four appeals For the reasons already indicated it is neither necessary nor desirable to consider the cross appeal THE SUPREME COURT Denham J Murray J McGuinness J Hardiman J Geoghegan J BETWEEN CAROLINE O BRIEN 344 363 02 Applicant Appellant and SOUTH WESTERN AREA HEALTH BOARD Respondent BETWEEN ANNE T BRANNICK 345 362 02 Applicant Appellant and EAST COAST AREA HEALTH BOARD Respondent BETWEEN SARAH CLARKE 346 361 02 Applicant Appellant and SOUTH WESTERN AREA HEALTH BOARD Respondent BETWEEN MELISSA LOCKHART 347 360 02 Applicant Appellant and SOUTH WESTERN AREA HEALTH BOARD Respondent JUDGMENT delivered the 5th day of November 2003 by MR JUSTICE GEOGHEGAN These are four appeals from refusals by the High Court Ó Caoimh J to grant various orders by way of judicial review the effect of which would have been to compel the respondent health boards to provide or fund home midwifery services for the respective applicants and appellants In all four cases leave to bring judicial review proceedings was granted on the grounds that section 62 of the Health Act 1970 creates a legally enforceable right in favour of the respective applicant In three of the cases that was the only ground on which leave was granted These were the O Brien Clarke and Lockhart cases In the Brannick case however a second ground of relief was permitted in the order granting leave That second ground read as follows Unfair and unconstitutional discrimination as compared with comparable expecting mothers in other health board areas and such disparate treatment is remediable in damages I will treat of this second ground later on in the judgment but I will first confine myself to the common ground on which leave was given in all the cases At this point I should mention that in each case the respondent has served a notice of cross appeal from so much of the judgment and order of the High Court as held and ordered 1 That the provisions of section 2 of the Health Amendment No 3 Act 1996 do not qualify the statutory duty imposed on a health board pursuant to the provisions of section 62 of the Health Act 1970 and 2 that the provisions of section 2 of the Health Amendment No 3 Act 1996 cannot be construed as overriding any clear statutory obligation to provide a specific service by a health board in the discharge of its statutory functions or obligations The cross appeal raises such wide issues that it would be unwise to express any view on them as a moot If this court is disposed towards dismissing the appeals it is neither necessary nor desirable to consider the cross appeal I turn

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  • drastic consequences of the operation of a forfeiture clause must surely have been a weighty consideration in determining whether the old rule relied on in that case should be still applied The fact that it does not seem to have been taken into account in any way must seriously weaken the persuasive force of Mexborough as a precedent S 22 of the Courts of Justice Act 1924 provided that The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be exercised so far as regards pleading practice and procedure generally including liability as to costs in the manner provided by such rules of court as may be made pursuant to this part of this Act and where no provision is contained in any such rules of court and as long as there shall be no rule with reference thereto it shall be exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred by this Act This section undoubtedly carried over into the law of the Irish Free State the pre existing law as regards pleading practice and procedure generally in the Superior Courts However in the absence of authority in the form of a decision by the House of Lords or any Irish Court to the same effect as Mexborough it cannot be said in my view that the practice and procedure as to discovery and interrogatories carried over by this provision was subject to any such rule in the case of an action claiming the forfeiture of a lease The modern Irish law of discovery as explained by this court in Allied Irish Banks Plc v Ernst and Whinny would in any event not permit of any such restriction in the case of actions for the forfeiture of a lease Commenting on the differences between discovery inter partes and third party discovery Finlay CJ in the course of his judgment in that case said Notwithstanding these differences between a party to an action and a person who is not a party to an action which may place in relation to the obtaining of discovery against a person not a party a greater onus on the applicant the basic purpose and reason for the procedure of discovery remains identical in both instances It is to ensure as far as possible that the full facts concerning any matter in dispute before the court are capable of being presented to the court by the parties concerned so that justice on full information rather on a limited or partial revelation of the facts arising in a particular action may be done The existence of the rule in Mexborough would clearly be at variance with the general purpose of discovery as laid down in that case It remains to be noted that the rule in Mexborough was abolished by statute in England in 1968 following a recommendation by the Law Reform Committee which saw no reason for the continued existence of this limitation on the court s power to order discovery having regard to the wide powers of the court to relieve against forfeiture I would dismiss the appeal and affirm the order of the High Court THE SUPREME COURT Keane C J McGuinness J Hardiman J 219 01 BETWEEN DUBLIN PORT COMPANY PLAINTIFF RESPONDENT AND BOND ROAD CONTAINER STORAGE AND TRANSPORT LIMITED DEFENDANT APPELLANT JUDGMENT delivered the 2Oth day of December 2002 by Keane C J The point at issue in this appeal is not without interest but is one on which the industry of counsel has failed to unearth a single Irish authority Can a lessor who seeks to forfeit a lease obtain an order for discovery against the lessee to assist him in proving that there has been a breach of the relevant covenants giving rise to a forfeiture The facts are not in dispute The plaintiffs respondents hereafter the lessors entered into two leases on the 26th March 1996 and the 29th March 2000 with the defendants appellants hereafter the lessees demising premises at Bond Road in the docklands area of Dublin for terms of 99 years from the 1st July 1995 and the 1st July 1999 On the 24th November 2000 the solicitors for the lessors served notices of re entry relying on a number of alleged breaches of covenants in the leases The breach alleged in respect of Covenant 7 in each case was that You have carried out alterations and additions to the demised premises in default of compliance with the Planning Acts including a erecting a communications mast with ancillary equipment on the premises b by subdivision of the property into separate units c by carrying out development works on the property d by changing the use of the property e By the erection of signs on the property It was also alleged that there had been a breach of Covenant 12 in each case as follows You have subdivided the premises into separate units and also sublet the premises without consent The lessees having failed to deliver up possession of the premises these proceedings were instituted claiming an order for recovery of possession and damages for breach of contract The lessees delivered a defence and counterclaim which contained a complete traverse of the averments in the statement of claim and a claim inter alia for relief against forfeiture On the 20th April 2001 the solicitors for the lessors wrote to the solicitors for the lessees asking them to make discovery in relation to what were described as all arrangements between the lessees and all of the parties who were carrying on business in the various areas comprised in the leases The letter added The reason why such discovery is required is because the defendant has denied that there are third parties in occupation and possession of the premises contrary to the terms of the leases The lessees

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  • the affidavit on the 19th June particularly having regard to the fact that the first notification of any objection was by the letter of the 14th June 2000 Consequently this is not a ground upon which to set aside the exercise of discretion of the learned trial judge Counsel on behalf of the respondents laid great stress on the watchdog nature of the role which a member of the public may take under s 27 and argued that this was a ground upon which the decision on costs could be set aside However it transpired that this ground was not argued before the High Court As this is a court of appeal in general issues are only determined on appeal when they have been argued in the court of trial There is no special reason why this ground not having been argued in the High Court may be canvassed in the appellate court In this application the High Court was exercising its discretion in relation to the remedy provided under s 27 of the Local Government Planning and Development Act 1963 as amended See White v McInerney Construction Ltd 1995 1 I L R M 374 Avenue Properties Ltd John McCabe v Farrell Homes Ltd 1982 I L R M 21 This discretion was also exercised by the High Court in its determination on the issue of costs The discretion is exercised in accordance with law The normal rule is that costs follow the event However there are circumstances when a court on the facts of a case determines that the normal rule will not apply Indeed a successful applicant may not succeed in obtaining an order for costs if the facts indicate features which are unsatisfactory as to the way in which they acted see for example Donegal County Council v O Donnell Unreported High Court O Hanlon J June 25th 1982 The burden is on the party making an application to show that the order for costs should not follow the general rule In this case I am of the opinion that the applicant has not discharged this burden so as to take it out of the general rule There are no such circumstances in this case which would take it out of the general rule In the High Court judgment the learned trial judge identified eight discretionary factors relevant to the substantive issue It could be inferred that these were relevant also in his determination as to costs These factors included the following 1 That the applicant is a sole applicant that he is not resident in the area and that he could not suffer any injury or damage from the event 2 That there was no evidence from any person closely connected to the area the planning and development of the area which is in issue that indicated or expressed concern on the part of any such persons 3 That the official watchdog that has been charged with supervising proper planning and development by the Oireachtas namely the Kildare County Council was aware of the matters and did not proceed under s 26 or s 27 of the Act 4 That there was no evidence of bias on the part of the Planning Authorities towards this type of event or the owners of the land The learned trial judge found to the contrary in this case and instanced the conditions imposed in the planning permissions 5 The learned trial judge found evidence of a bona fide belief in the respondents their solicitors and the Planning Authorities that planning permission was not needed for the event 6 He considered the evidence that the respondents had incurred substantial costs in progressing the venture He also considered the number of people who had paid for tickets and who would be disappointed 7 The learned trial judge considered that he should consider what was just and proportionate 8 The learned trial judge considered the nature of a breach if any and whether if it existed it was serious or not 9 The learned trial judge considered that the event which was in issue had been widely publicised and known about for a very considerable time 10 The learned trial judge also considered the loss to innocent parties caterers etc and the very many public officials such as Gardai Fire and Health who had participated in the planning In exercising his discretion such factors were referred to by the learned trial judge on the substantive issue It could be inferred that they were also relevant to his decision on the issue of costs If they were they were not inappropriate They indicate a careful analysis of the facts and surrounding circumstances of the case They were reasonable factors to consider in the circumstances On the specific issues stressed that the applicant only received the respondents affidavit on the 19th June and the watchdog nature of the remedy there is no reason to interfere with the exercise of the discretion of the learned trial judge The time frame was one created by the applicant he could not then complain As to the public watchdog nature of the remedy that is certainly relevant It is relevant to the issue of locus standi first It may also be relevant to the issue of costs However it is only one of many factors and is not determinative of the matter Whilst costs follow the event in general on occasions the circumstances engage a different result Thus in F v Ireland and the Attorney General Unreported Supreme Court 27th July 1995 the applicant appellant had sought unsuccessfully for a declaration that certain provisions of the Judicial Separation and Family Law Reform Act 1989 were invalid having regard to the provisions of the Constitution He was unsuccessful in both the High Court and Supreme Court In the High Court the learned trial judge refused to make any order as to costs and the plaintiff appealed against that order In the Supreme Court on the issue of costs Hamilton C J held The question of the costs of any proceedings before the Court is a matter for the discretion of the judge hearing and determining such matter The Court has considered the judgment of the learned trial judge on the question of costs as contained in Counsel s note of his ex tempore judgment on the question of costs The Court is satisfied that the learned trial judge exercised his discretion in this matter judicially and in a proper manner and see no grounds for interfering with the order made by him in respect of the proceedings before him This Court has a discretion with regard to the costs of the proceedings before it There is no doubt that the appeal before this Court involved issues of considerable public importance and that it was desirable in the public interest that a decision on the issues involved be reached as early as possible having regard to the situation in respect of many orders made pursuant to the provisions of the Act which would arise if the Plaintiff Appellant had been successful in his challenge to the impugned provisions of the Act There is no doubt but that the Attorney General regarded this case as a test case and was anxious that the matter be disposed of as quickly as possible By notice of motion dated the 19th day of October 1993 the Attorney General sought an order directing that the Circuit Court appeal be disposed of prior to the determination on the constitutional issues raised in these proceedings That application was refused in the High Court Johnson J The Attorney General by notice dated the 4th day of January 1994 appealed to this Court against such decision but by letter dated the 18th day of February 1994 withdrew that appeal His action in that regard was a clear indication of his desire that the issues raised in these proceedings be determined While this case was of considerable importance to the parties involved it was also of considerable importance to the parties involved in at least three thousand cases in which orders had already been made under the Judicial Separation and Family Law Reform Act 1989 It was conceded that the wife was entitled to the benefit of the Attorney General s scheme and the Court will make any necessary recommendations in that regard In the particular circumstances of this case the Court considers that it should exercise its discretion with regard to the costs of the proceedings before it by awarding the costs of the appeal to the Plaintiff Appellant against the Attorney General In this case the High Court had a discretion in awarding costs There is nothing in the judgment as to the substantive issue which may be inferred as having some relevance to the decision on costs nor in the specific determination on costs which indicates an error on the part of the learned trial judge Rather both indicate a careful consideration of all the relevant facts I am satisfied that there was no error in the decision of the High Court Consequently I would uphold the decision on costs 6 Conclusion For the reasons stated in this judgment I would dismiss the appeal and affirm the order of the High Court as to costs THE SUPREME COURT Denham J Hardiman J McCracken J Record No 221 00 IN THE MATTER OF THE PLANNING ACTS AND IN THE MATTER OF S 27 OF THE LOCAL GOVERNMENT PLANNING AND DEVELOPMENT ACT 1976 AND IN THE MATTER OF THE LOCAL GOVERNMENT PLANNING AND DEVELOPMENT ACT 1992 BETWEEN TOMMY GRIMES Applicant Appellant and PUNCHESTOWN DEVELOPMENTS COMPANY LIMITED AND MCD PROMOTIONS LIMITED Respondents Judgment delivered on the 20th day of December 2002 by Denham J 1 Appeal Tommy Grimes the applicant appellant hereinafter referred to as the applicant brought proceedings under s 27 of the Local Government Planning and Development Act 1976 as amended for an injunction restraining Punchestown Developments Company Limited and MCD Promotions Limited the respondents hereinafter referred to as the respondents from holding a rave concert at Punchestown Race Course on the 24th and 25th day of June 2000 The only matter in issue on this appeal is the order as to costs The relevant grounds of the appeal filed were as follows 1 That the Learned Trial Judge erred in law and or in fact in the exercise of his discretion in making an order that the Applicant do pay to the Respondents their costs of the proceedings when taxed and ascertained 2 That the Learned Trial Judge erred in law and and or in fact A In holding the Applicant liable for costs in circumstances whereby he had in correspondence asked the Respondents if permission had been granted to which the only information furnished related to an entirely different concert B In holding the Applicant liable for costs in circumstances whereby the only avenue open to the Applicant in light of the planning permission restrictions was by way of Section 27 proceedings whereby in relation to an intended concert at Fairyhouse to be held by the second named Respondent judicial review proceedings seeking to restrain An Bord Pleanala from hearing the said declaratory application were brought by the said second named Respondent and thereby prevent any such determination by An Bord Pleanala C In that he failed to have any or any due regard to the fact that the information in relation to prior use in relation to concerts or similar events was advanced on the eve of the hearing in circumstances whereby the said information must have been available to them long prior to the initial requests of the Applicant 2 Facts The applicant commenced proceedings by way of notice of motion dated the 16th day of June 2000 grounded upon an affidavit of the same date The solicitors of the applicant had written to the respondents on the 14th June 2000 stating inter alia We act for the above named client who instructs that he objects to the holding of a concert at Punchestown on the above date The reasons for our client s objections are that the holding of the concert is a clear abuse of the Planning Process There is no Planning Permission for the holding of such an event and it is clear from the Planning Permission granted in 1998 that there is an express prohibition on such concerts as set out in Condition No 8 Register Ref No 1258 98 There is no prior history of such events being held at this venue The facilities and surrounding area do not have the capacity to deal with the substantial numbers of people involved giving rise to serious concerns for public health and safety risks additionally this event will cause substantial inconvenience and disruption which will be caused to those living in the locality It is also clear from our instructions that there is substantial local disquiet in relation to the holding of this event Our client is furthermore concerned that this concert was advertised as a Rave Concert As you are aware this concert is advertised as running until 2 30 a m which exceeds the times already sought through Planning Permission While Planning Permission has been sought under Planning Ref No 99 1752 this Planning Permission has not in fact been granted and we note that Kildare County Council have requested additional information as per their letter of the 6th April 2000 addressed to Punchestown Developments Company Limited c o James Toomey Architects Powerscourt Townhouse Centre 59 South William Street Dublin 2 In all the above circumstances it is quite clear that the entire concert is unauthorised and unless you confirm within a period of twenty four hours that no such concert will proceed an application will be made by our client pursuant to Section 27 of the Planning Act 1976 as amended by Local Government Planning Development Act 1994 seeking an Order restraining you from holding this event This was the first notification to the respondents of the applicant s objections Solicitors on behalf of the second named respondent replied by letter dated the 16th June 2000 That letter stated We act on behalf of MCD Management Services Limited of 7 Park Road Dun Laoghaire Co Dublin Your letter addressed to Mr Denis Desmond of MCD Management Services Limited has been passed onto this office to deal with You have expressed concerns about the Creamfields concert which is scheduled to take place at Punchestown on the 24th of June next We have carefully considered the contents of your letter which displays a fundamental lack of understanding of the current legal position regarding the holding of transient events of this nature The Supreme Court have indicated in Butler v Dublin Corporation 1999 1 I R 565 that planning legislation does not apply to transient events Keane J indicated that the radical controls imposed by planning legislation were not intended to apply to changes in use which were so fleeting in their nature that they could properly be regarded as not material in planning terms The Creamfields event does not involve any change in the use of the lands any such change which is denied is not material in planning terms as the planning effects of this event are equivalent to those of sporting or racing events Furthermore the staging of this event involves no change in the use of the lands and its authorised pre 1964 use is a place of public resort and or public entertainment We fundamentally disagree with your suggestion that Condition no 8 of Register ref 1258 98 is of relevance here Each of these applications should it be necessary to make same which is denied in this case is to be taken on its merits In any event we understand that a submission has been made to Kildare County Council in respect of a proposed concert by the artist Charlotte Church and at that time it was confirmed by the County Council that planning permission was not required for such an event On this basis it was clearly not necessary for Punchestown to make an application for planning permission for this concert In your letter you raise alleged concerns about inconvenience and disruption to those caused in the locality The existence of this event has been in the public domain for some months extensive consultation has taken place in the locality and this is the first letter or complaint that our client has received from Mr Grimes who we understand is a resident of Kells which is many miles away from Punchestown The time for your client to object to this concert has long since expired and an application for an injunction in the terms suggested is inappropriate Furthermore we wish to take issue with the reference in your letter to this event being described as a rave The publicity surrounding this concert never makes reference to the word rave and your letter is entirely incorrect in that regard The event which is scheduled to take place on the 24th of June has been many months in planning It involves numerous acts and the costs associated with the organization promotion and sponsorship of this event are in excess of 2 million We presume that you have appraised Mr Grimes fully of the fact that should your application take place he will have to give an undertaking as to damages to the High Court In such event our clients will require detailed information as to Mr Grimes ability to discharge such an undertaking in the event that his proceedings are ultimately unsuccessful In the event that Mr Grimes is in a position to give that undertaking we would ask you to advise him lest he be under any misapprehension that in the event of this interim application succeeding but his action ultimately failing our clients will pursue Mr Grimes for reimbursement of all their losses associated with this event Please ensure that a copy of

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