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  • a decree of nullity which creates the position that a marriage never took place If there had been any gap between the making of the strike out order and the making of the re entry order the fact that the strike out order was vacated closed that gap In argument Mr McDermott accepted that this proposition was valid only if both orders were made during the course of one day He submitted that the position of all three Respondents at the close of the Court s business on the 18th November 1988 was precisely the same as it was at the 4beginning of that day they were not in any way prejudiced Mr McDermott pointed out that it was common in the District Court for cases to be struck out and subsequently re entered during the course of a day He relied on the concept of an order being in the breast of the Court and referred to a passage in O Connor s Justice of the Peace where it was stated The session of the Court is considered in point of law as one day and the date thereof is the first day of holding and therefor the Justices may alter their judgment at any time during the sessions and this is even so where the first order has been recorded for during the sessions such first order remains in the breast and power of the Court Counsel also referred to what he described as the modern position as set out by Davitt P in The State Kiernan v De Burca 1963 IR 348 at 357 When a Justice has pronounced his decision in a case in open Court he is not necessarily precluded from changing his mind and pronouncing a different one for so long as there is a continuing of sitting the order is in the breast of the Court per Holt J in St Andrew s Holborn v St Clement Dan e s he must however pronounce his altered decision also in open Court Mr McDermott also referred to the terms of the order of the High Court granting bail where it is stated that the applicants be admitted to bail pending remand and if returned for trial on the said charge pending such trial and it was also ordered that the first named applicant should not depart or be absent from such Court at any such remand or hearing without leave and also attend any other Court to which his trial may be transferred until the charges against him shall be duly disposed of according to law On the 18th November 1998 the trial of the first named Respondent had not yet taken place and the charges against him had not been duly disposed of according to law As far as the first named Respondent was concerned it was he himself through his solicitor who had applied to have the original charge re entered rather than having the new charge proceeded with It was in his interest so to do and he deliberately did so for the reason that such a course would save him from having to make a new application for bail before the High Court Having acted in this way the first named Respondent could not be heard to say that he was no longer bound by his bail and that his bail could not be estreated Senior Counsel for the first named Respondent Mr O Hanlon pointed out that Mr Cronin was free to leave the District Court following the strike out order In fact he did so and went to his home where he was later arrested on the new charge He was then brought to the District Court on foot of the new charge Once the original charge was struck out he was no longer on bail Mr O Hanlon referred to section 29 of the Criminal Procedure Act 1967 Under this section it was provided that the District Court had no power to grant bail where the accused was charged with murder only the High Court could grant bail in those circumstances He submitted that neither had the District Court power to revive a previous bail order made by the High Court He conceded that the re entry of the earlier charge had been on the application of the first named Respondent s own solicitor and that the purpose of this application was to avoid the necessity of a new application for bail to the High Court Nevertheless Mr O Hanlon argued jurisdiction in the District Court could not be created by the consent of the first named Respondent where such jurisdiction did not already exist Senior Counsel for the second and third named Respondents Mr Gageby drew the attention of the Court to the wording of the Recognizance that was entered into by the bailspersons The first and primary condition of the Recognizance was that the accused defendant would appear before the District Court at Civic Offices Merchant s Quay in the County of the City of Limerick on the 23rd day of September 1998 at 10 30 a m and any adjournment thereof until his presence is no longer required Once the order striking out the charge was made Mr Cronin s presence was no longer required He was free to leave which he did and the duty of his bailspersons was discharged The recognizances had expired and were a spent force the bailspersons were released from their obligations as sureties thereunder Mr Gageby also referred to the order of the High Court granting bail Kinlen J 22nd June 1998 which provided that The said Applicant be admitted to bail pending remand and if returned for trial on the said charge pending such trial and that the above named applicant shall appear before the District Court at each and every remand and if returned for trial on each day of the hearing of his trial and any adjournment thereof and at the final determination thereof and abide by the judgment of the Court and not depart or be absent from such Court at any such remand or hearing without leave and also attend any other Court to which his trial may be transferred until the charges against him shall be duly disposed of according to law Once the judge of the District Court had made his order striking out the charges against Mr Cronin there no longer was any trial pending and the charges against him had been duly disposed of accordingly to law The second and third named Respondents had performed their duty as bails persons Mr Cronin had appeared to answer his bail in the District Court on the 18th November 1998 The charges against him had been struck out and the duty of the bailspersons was at an end The second and third named Respondents were not present in Court on that day There was no requirement for them to be present once they had ensured that Mr Cronin himself was in Court Mr Gageby submitted that justice was not served in the present case as the Respondents had received no notice either of the strike out or most importantly of the application by the accused to re enter the proceedings after his re arrest which re entry amounted to an attempt to re impose serious obligations without the respondents consent Counsel also argued that the orders of the District Court made on the 18th November 1998 which were at the centre of the case did not support the finding of the Circuit Court judge at paragraph 2 X of the Case Stated that the order striking out was vacated The order of the District Court of November 18th 1998 showed only that the charges were struck out and subsequently re entered He submitted that if the original order had been vacated it would mean that the order to strike out had never occurred and in those circumstances there would be no need to r e enter any proceedings Furthermore the need for the applicant to argue that the Recognizance had been revived would not arise as revival of an order was only necessary after it had expired If as was argued by the applicant the practical effect of striking out the charges was that there were no substantive proceedings in being but the obligations under the original Recognizance were nonetheless able to be re imposed without notice of re entry there was a continuation of something which had de facto ceased to be The issue of notice to the second and third named Respondents was essentially one of fair procedures As far as the argument put forward by counsel for the applicant was concerned Mr Gageby accepted that from time to time matters were struck out and re entered on the same day in the District Court frequently because parties had failed to appear at for instance a call over This was largely a technical matter and was done with the consent of all parties In the instant case however there was a clear gap between the strike out order and the re entry of the charge The strike out order had not been vacated had the judge intended to vacate the order that could readily have been stated on the face of the order Instead the judge made a new order re entering the charge This was a fresh commencement of the proceedings Conclusions The three questions referred to this Court by the Circuit Court Judge in the Case Stated are as follows 1 Did the Recognizance entered into by the Respondents dated the 26th August 1998 expire and become a spent force for all intents and purposes on the 18th November 1998 when Charge Sheet 334 98 of Henry Street was struck out by the District Court Judge at Limerick District Court II Was the said Recognizance revived and become binding in every respect as against the Accused Respondent Mark Cronin upon the granting of the application made on his behalf to have the said Charge Sheet re entered III Was the said Recognizance revived and become binding in every respect as against the Respondents Marie Cronin and Catherine Cronin when the said Charge Sheet was re entered notwithstanding the fact that they had no notice of the application to re enter the Charge Sheet and were not present in the District Court at the relevant time and did not play any part in this part of the proceedings It seems to me that in approaching these questions one must look in some detail at what actually occurred in Limerick District Court on the 18th November 1998 The District Court Judge at the time of the previous remand on 21st October 1998 had ordered that this remand was peremptory as against the Prosecution and stated that if the Book of Evidence was not served the Charge Sheet would be struck out This was a serious step to take and all parties must have been aware of that fact On the 18th November Mr Cronin attended at the District Court in answer to his bail I accept the submission of Mr Gageby that once they had ensured Mr Cronin s proper attendance there was no requirement for the second and third named Respondents to attend and they were not in fact present in the Court When the case was called on the Prosecution failed to produce the Book of Evidence The learned District Court Judge in accordance with his previous warning struck out the charges against Mr Cronin This was indeed a due disposal of the charges against him according to law Mr Cronin left the Court a free man and went to his home Had matters ended there I have no doubt that at that point the Recognizances entered into by all three Respondents had expired and that they were no longer bound by In the Case Stated the Circuit Court Judge states at paragraph X that It transpired that the Book of Evidence was in fact available but due to a misunderstanding had not been in Court when the case had been called earlier As far as the immediate effect of the strike out order is concerned the fact that the Book of Evidence was not produced at the proper time due to a misunderstanding and that it was in fact available is neither here nor there it is quite irrelevant The next step was that later in the day Mr Cronin was arrested at his home on new charges relating to the same alleged offences and brought before the District Court The new charges formed a new complaint to the District Court one presumes that the normal procedure would have been to remand him on these charges and to order the preparation and service of a Book of Evidence It is clear that if this course were followed bail orders and Recognizances connected to the original charges would not apply Since a charge of murder was involved under section 29 of the Criminal Procedure Act 1967 the District Court could not have granted bail It would have been necessary to remand Mr Cronin in custody unless and until he was granted bail by the High Court The solicitor for the accused Mr Ted McCarthy then made an application to the District Court Judge asking him to re enter the original Charge Sheet No 334 98 rather than proceeding on foot of the new charges It is accepted by all parties that Mr McCarthy s motive for making this application was in his belief to ensure that his client would not be remanded in custody but would remain on bail The judge acceded to this application and made an order re entering the charges on Charge Sheet 334 98 As has already been pointed out the wording of this order was as follows It was adjudged as follows that the charges be struck out On subsequent application by Mr Ted McCarthy solicitor for accused it was directed that the said charges be re entered by consent The order does not on its face make any mention of vacating the previous order and in my view the wording of the order does not imply such vacation On the contrary it sets out two distinct and separate actions by the judge First it was adjudged simpliciter that the charges be struck out It is then stated specifically that on subsequent application it was directed that the charges be re entered The judge then ordered that the accused be remanded on continuing bail In logic I would accept the submission of Mr Gageby that if the judge wished to vacate his original strike out order it was open to him to do so but that if he did so there would be no need to re enter the charges as they would still be in existence The second and third named Respondents were not present in Court for any of this procedure nor were they on notice of any of the relevant events In the course of oral submissions it was established that the main plank of the applicant s argument was that any perceived gap between the strike out order and the order of re entry was closed by the fact that all the matters in question took place on one day during a single sitting of the Court In submitting this Mr McDermott relied on the passages cited above from O Connor s Justice of the Peace and the dictum of Davitt P in the State Kiernan v De Burca 1963 IR 348 While I accept that orders may well be altered by a judge in this way during the course of the day s session either on application by a party or of his own motion I find it hard to accept that this practice is truly analogous to the course of events in Limerick District Court on the 18th November 1998 It seems to me that there is a clear gap in time between the strike out order and the re entry order This gap is significant precisely because during that time the first named Respondent was no longer an accused person before the Court but a free man and as a consequence his Recognizance and those of his bailspersons were discharged In my opinion an alteration or later change of mind by the judge even on the same day could not retrospectively undo these facts The re entry of the charge was a fresh step by the Court which brought about a new situation This affects the position of all three Respondents There is however a vital difference between the position of the first named Respondent and that of the second and third named Respondents Mr Cronin through his solicitor quite deliberately sought to create a situation where he was again bound by the Recognizance he had already given in connection with the original charges He did so in his own interest It seems to me that it would be verging on an abuse of process that he should now be heard to say that he is not so bound As far as the second and third named Respondents are concerned however the situation is very different Had they come into the Court after the charges had been struck out and before they were re entered it would have been perfectly open to them to assume that their Recognizances were discharged and on the part of Ms Catherine Cronin to re claim the money she had paid into Court In that context I do not consider that it was open to the District Court judge to re impose Recognizances on them without their agreement and without notice to them Apart from any other considerations this is as was submitted on their behalf by Mr Gageby contrary to the principles of natural justice Since I consider that these Respondents could not be bound by the order directing that the accused be remanded on continuing bail I also consider that it is not open to the Court to estreat their bail The answers which I would give to the questions posed in the Case Stated therefore are as follows I Yes II Yes III No THE SUPREME COURT Record No 341 01 McGuinness J Geoghegan J Fennelly J IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 BETWEEN SUPERINTENDENT ANTHONY KENNELLY APPLICANT AND MARK CRONIN CATHERINE CRONIN AND MARIE CRONIN RESPONDENTS Judgment of Mrs Justice McGuinness delivered on the 18th day of December 2002 This is Consultative Case Stated sent forward to the Supreme Court by His Honour Judge Desmond Hogan a judge of the Circuit Court sitting in Limerick The case arose out of the hearing of a District Court appeal in which the bail of the three Respondents was estreated by the judge of the District Court In the body of the Case Stated it is said that that the case is stated pursuant to the provisions of section 52 of the Courts Supplemental Provisions Act 1961 This is incorrect The relevant section referring to the stating of a case by a judge of the Circuit Court to this Court is section 16 of the Courts of Justice Act 1947 which is in fact correctly recited in the title to these proceedings The facts giving rise to the Case Stated and the issues in question are set out by the learned judge of the Circuit Court as follows This is a Case Stated by me Judge Desmond Hogan a judge of the Circuit Court sitting at Henry Street in the City of Limerick pursuant to the provisions of section 52 of the Courts Supplemental Provisions Act 1961 and in pursuance of an application made to me in that behalf by Michael D Murray State Solicitor for Limerick City for the determination of the Supreme Court 1 At the sitting of the Circuit Court held at Henry Street Limerick on the 14th day of February 2001 I embarked upon the hearing of an appeal from an order of the District Court made by District Judge Michael Reilly at Limerick District Court on the 16th November 1999 of Estreatment of bail and Forfeiture of money lodged in Court against the Respondents as follows a Mark Cronin in the sum of 5 000 b Catherine Cronin and Marie Cronin in the sum of 10 000 each and the forfeiture of the said sum of 10 000 lodged in Court by Catherine Cronin I beg to refer to the order of the District Court dated the 16th November 1999 when produced 2 At the hearing of the said appeal the following facts were proved or admitted I The Respondent Mark Cronin was arrested and charged with the murder of Georgina O Doherty at Limerick District Court on the 27th May 1998 on foot of Charge Sheet No 334 98 of Henry Street and I beg to refer to a copy of the said Charge Sheet when produced The Respondent Mark Cronin was remanded in custody on the 27th May 1998 to Limerick District Court on the 3rd June 1998 II The Accused Respondent Mark Cronin was granted bail in the High Court on the 22nd June 1998 The said order of the High Court was varied by order made on the 26th June 1998 and I beg to refer to copies of the said orders of the High Court when produced III On the 26th August 1998 the Respondents entered into a Recognizance before District Judge Thomas E O Donnell at Limerick District Court and I beg to refer to the said Recognizance when produced A sum of 10 000 was lodged by the Respondent Catherine Cronin when entering into the Recognizance as aforesaid IV The Respondent Mark Cronin was in breach of his bail terms and an order was made by the High Court revoking the bail of the Respondent Mark Cronin and I beg to refer to a copy of the High Court Order made by His Honour sic Mr Justice O Donovan on the 18th March 1999 the Warrant for the Arrest of the Accused issued on foot of the said Order and the subsequent Order of the High Court made by His Honour sic Mr Justice Cyril Kelly on the 22nd March 1999 when produced V On the 29th March 1999 District Judge John O Neill sitting at the Courthouse Merchant s Quay Limerick certified non performance of the conditions of bail of the said Mark Cronin and he endorsed a certificate in breach of recognizance on the original recognizance entered into by the Respondents herein I beg to refer to the said Recognizance duly certified as aforesaid when produced VI The applicant made an application to Limerick District Court on the 12th April 1999 to Estreat the Recognizance entered into by the Respondents and to Forfeit the money lodged in Court by the Respondent Catherine Cronin VII The District Judge duly made an order Estreating the Recognizance and Forfeiting the monies lodged in court which said Order is now under appeal VIII On the 21st October 1998 the Respondent Mark Cronin was remanded on continuing bail to Limerick District Court on the 18th November 1998 and the District Judge ordered that the remand was peremptory as against the Prosecution stating that if the Book of Evidence was not served the Charge Sheet would be struck out IX On the morning of the 18th November 1998 the Respondent Mark Cronin duly appeared in answer to his bail the Book of Evidence was not available and the Charge Sheet before the Court Charge Sheet 334 1998 of Henry Street was struck out X Later on the same date the 18th November 1998 the Accused Respondent Mark Cronin was re arrested and re charged with the murder of Georgina O Donnell on foot of a new Charge Sheet It transpired that the Book of Evidence was in fact available but due to a misunderstanding had not been in Court when the case had been called earlier Upon application on behalf of the solicitor for the accused the District judge vacated his earlier Order striking out the Charge Sheet No 334 98 of Henry Street and re entered the Charge Sheet Having re entered the Charge Sheet the District Judge remanded the Accused Respondent Mark Cronin to Limerick District Court on the 2nd December 1998 The purpose was to avoid having to re apply to the High Court for bail on foot of a new Charge Sheet which would also involve the relevant parties entering into a fresh Recognizance XI The accused was remanded on continuing bail on a number of occasions between the 2nd December 1998 and the 10th March 1999 until his bail was revoked whereupon he was remanded in custody until he was returned for trial XII Neither of the Respondents Catherine Cronin and Marie Cronin were present in the District Court on the 18th November1998 and were not party to the application made on behalf of the Accused Respondent Mark Cronin to have Charge Sheet No 334 98 of Henry Street re entered They were not on notice did not consent in any way to the application and they played no hand act or part in the arrangements made to re enter the Charge Sheet and they were complete strangers to that part of the proceedings 3 It was contended by and on behalf of the Respondents that the Recognizance entered into on the 26th August 1998 expired and was a spent force when the Charge Sheet 334 98 of Henry Street Limerick was struck out on the morning of the 18th November 1998 and that it could not be revived by the subsequent re entering of the Charge Sheet later on the same date In particular it was contended that the Respondents Marie Cronin and Catherine Cronin were not present in the District Court on the 18th November 1998 were unaware of the proceedings that took place on that date had not consented in any way to what had happened It was further contended that as the Recognizance had expired when the Charge Sheet was struck out and was not revived by the subsequent re entry of Charge Sheet 334 98 of Henry Street and that it would be wrong in law to make any Order of Estreatment of bail or forfeiture of monies lodged based on the said Recognizance It was contended in particular that once the Charge Sheet was struck out the Respondents Marie Cronin and Catherine Cronin were released from their obligations as Sureties under the Recognizance dated the 26th August 1999 should read 1998 and these obligations could not be re imposed upon them by the subsequent application of the Accused Respondent Mark Cronin to have the Charge Sheet re entered on the 18th November 1998 with the consent of the prosecution but without any notice to the sureties and without giving them any opportunity to be heard 4 It was contended for the applicant as follows a that the Recognizance entered into on the 26th August 1998 was entered on foot of and as a consequence of the orders granting the Accused Respondent Mark Cronin bail made by the High Court dated the 22nd June 1998 and 26th June 1998 hereinbefore referred to and that the said Recognizance dated the 26th August 1998 was clearly related to and referable to Charge Sheet 334 98 of Henry Street b That so long as Charge Sheet 334 98 Henry Street was properly before the Courts the Respondents were bound by the terms of the Recognizance c That the District Justice sic acted within jurisdiction when on the 18th November 1998 he vacated his earlier order striking out the Charge Sheet and re entered same d That in so doing he effectively revived the Recognizance entered into by the Respondents and their respective obligations thereunder XIII I reserve my decision on the issue pending the determination of this Case Stated The opinion of the Supreme Court is respectfully sought on the following questions a did the Recognizance entered into by the Respondents dated the 26th August 1998 expire and become a spent force for all intents and purposes on the 18th November 1998 when Charge Sheet 334 98 of Henry Street was struck out by the District Court judge at Limerick District Court or b Was the said Recognizance revived and become binding in every respect as against the Accused Respondent Mark Cronin upon the granting of the application made on his behalf to have the said Charge Sheet re entered c Was the said Recognizance revived and become binding in every respect as against the Respondents Marie Cronin and Catherine Cronin when the said Charge Sheet was re entered notwithstanding the fact that they had no notice of the application to re enter the Charge Sheet and were not present in the District Court at the relevant time and did not play any part in this part of the proceedings The Case Stated is dated the 22nd November 2001 Exhibited with the Case Stated are the various documents referred to in the body of the Case Stated Unfortunately the documents exhibited did not include the order or orders made by the judge of the District Court on 18th November 1998 which are in fact the kernel of the case Counsel for the 2nd and 3rd Respondents provided this Court with a certified copy of the order made on 18th November 1998 which is signed by Thomas E O Donnell Judge of the District Court and the Court accepted that this was the order in question The order sets out the name and address of the accused and the complaint set out against him in the Charge Sheet No 334 98 of Henry Street which is exhibited with the Case Stated The order continues as follows IT WAS ADJDUGED AS FOLLOWS That the charges be struck out On subsequent application by Mr Ted McCarthy Solicitor for accused it was directed that said charges be re entered by consent and it was further ordered that the accused be remanded on continuing bail to 2nd December 1998 Submissions Full written and oral submissions were presented on behalf of the applicant and on behalf of the second and third named Respondents In addition oral submissions were made on behalf of the first named Respondent Counsel for the applicants Mr McDermott submitted that when the judge of the District Court made his second order on the application of the first named Respondent re entering the original charge he was in effect vacating his first order striking out that charge When the strike out order was vacated a situation was created whereby that order was rendered a nullity counsel compared the position to that created by a decree of nullity which creates the position that a marriage never took place If there had been any gap between the making of the strike out order and the making of the re entry order the fact that the strike out order was vacated closed that gap In argument Mr McDermott accepted that this proposition was valid only if both orders were made during the course of one day He submitted that the position of all three Respondents at the close of the Court s business on the 18th November 1988 was precisely the same as it was at the 4beginning of that day they were not in any way prejudiced Mr McDermott pointed out that it was common in the District Court for cases to be struck out and subsequently re entered during the course of a day He relied on the concept of an order being in the breast of the Court and referred to a passage in O Connor s Justice of the Peace where it was stated The session of the Court is considered in point of law as one day and the date thereof is the first day of holding and therefor the Justices may alter their judgment at any time during the sessions and this is even so where the first order has been recorded for during the sessions such first order remains in the breast and power of the Court Counsel also referred to what he described as the modern position as set out by Davitt P in The State Kiernan v De Burca 1963 IR 348 at 357 When a Justice has pronounced his decision in a case in open Court he is not necessarily precluded from changing his mind and pronouncing a different one for so long as there is a continuing of sitting the order is in the breast of the Court per Holt J in St Andrew s Holborn v St Clement Dan e s he must however pronounce his altered decision also in open Court Mr McDermott also referred to the terms of the order of the High Court granting bail where it is stated that the applicants be admitted to bail pending remand and if returned for trial on the said charge pending such trial and it was also ordered that the first named applicant should not depart or be absent from such Court at any such remand or hearing without leave and also attend any other Court to which his trial may be transferred until the charges against him shall be duly disposed of according to law On the 18th November 1998 the trial of the first named Respondent had not yet taken place and the charges against him had not been duly disposed of according to law As far as the first named Respondent was concerned it was he himself through his solicitor who had applied to have the original charge re entered rather than having the new charge proceeded with It was in his interest so to do and he deliberately did so for the reason that such a course would save him from having to make a new application for bail before the High Court Having acted in this way the first named Respondent could not be heard to say that he was no longer bound by his bail and that his bail could not be estreated Senior Counsel for the first named Respondent Mr O Hanlon pointed out that Mr Cronin was free to leave the District Court following the strike out order In fact he did so and went to his home where he was later arrested on the new charge He was then brought to the District Court on foot of the new charge Once the original charge was struck out he was no longer on bail Mr O Hanlon referred to section 29 of the Criminal Procedure Act 1967 Under this section it was provided that the District Court had no power to grant bail where the accused was charged with murder only the High Court could grant bail in those circumstances He submitted that neither had the District Court power to revive a previous bail order made by the High Court He conceded that the re entry of the earlier charge had been on the application of the first named Respondent s own solicitor and that the purpose of this application was to avoid the necessity of a new application for bail to the High Court Nevertheless Mr O Hanlon argued jurisdiction in the District Court could not be created by the consent of the first named Respondent where such jurisdiction did not already exist Senior Counsel for the second and third named Respondents Mr Gageby drew the attention of the Court to the wording of the Recognizance that was entered into by the bailspersons The first and primary condition of the Recognizance was that the accused defendant would appear before the District Court at Civic Offices Merchant s Quay in the County of the City of Limerick on the 23rd day of September 1998

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  • effect in all cases of a strike out followed by a reinstatement I see no reason to regard the in the breast of the court jurisprudence referred to in the judgment of Mrs Justice McGuinness and more fully elaborated upon at pp 202 and 203 of O Connor s The Irish Justice of the Peace 2nd edition Part 1 should be considered outdated or no longer applicable I am reinforced in that view by the reliance on it by Davitt P in The State Kiernan v de Burca 1963 I R 348 at 357 8 On the facts of this case and for the reasons which I have indicated I have no doubt that the two bailspersons were released There was a good deal of argument as to the difference between the vacating of an order and the re entry of charges after charges had been struck out It was the learned Circuit Court judge who used the term vacate and personally I do not accept Mr Gageby s argument that it was necessarily inappropriate In pure abstract logic of course it is quite true that if an order striking out a charge has been vacated then as it were the charge automatically stands entered In theory therefore there is no need to have an express order for re entry Mr Gageby argues that the reference to re entry is inconsistent with a vacating order I do not agree that the use of the word re entry implied that it was not the vacating of an earlier order There was nothing wrong in inserting those words for greater clarity I also find the argument irrelevant If a judge sets aside a charge and therefore in accordance with the judgment of Barr J in Carpenter v Kirby 1990 ILRM 764 effectively strikes out the complaint also that is a historical fact and it cannot cease to be a fact no matter what subsequent order is made Therefore if for instance the first named respondent Mark Cronin was entitled to go free following on that order that freedom cannot be retrospectively negatived by a subsequent order whether one calls it a vacating order or a reinstatement order or a re entry order or anything else In this case Mr Cronin was brought back into the court on foot of an arrest for the purposes of a new criminal proceeding in relation to the same charge The only real question which can arise in this case is whether on a revival of the original proceeding a recognizance can continue I am satisfied that it can in the case of the first named respondent and cannot in the case of the second and third named respondent But if for instance the second and third named respondent had been present in court and had expressly agreed to the reinstatement to use a neutral term of the original charge I think that they would have continued to be bound by their recognizances as they would have acknowledged that the proceeding was not finally disposed of But that question does not arise to be considered 9 I agree with the answers proposed by Mrs Justice McGuinness in her judgment but in the context of the views which I have expressed in this judgment 2002 IESC 77 THE SUPREME COURT McGuinness J Fennelly J Geoghegan J 341 01 IN THE MATER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 BETWEEN SUPERINTENDENT ANTHONY KENNELLY Applicant and MARK CRONIN CATHERINE CRONIN AND MARIE CRONIN Respondents JUDGMENT of Mr Justice Geoghegan delivered on the 18th day of December 2002 1 This is a consultative Case Stated sent forward to the Supreme Court by His Honour Judge Desmond Hogan a judge of the Circuit Court sitting in Limerick The title on the Case Stated refers to section 16 of the Courts of Justice Act 1947 which is the correct enabling section notwithstanding the erroneous reference to section 52 of the Courts Supplemental Provisions Act 1961 in the body of the Case 2 Mrs Justice McGuinness has set out the relevant facts contained in the Case Stated and it is not necessary for me to repeat them 3 The case potentially raises difficult questions as to the powers of a district court judge to reinstate charges already struck out by him whether with the consent or otherwise of the actual parties to the proceedings and whether with the consent or otherwise of bailsmen who might be affected by the reinstatement and as to the effect of such an order As it is my opinion that on quite narrow grounds the second question in the Case Stated must be answered in favour of the applicant and the third question in favour of the second and third named respondents I do not think it wise to consider or express views on those wider matters unless it was essential to do so 4 The nub of the problem confronting the learned Circuit Court judge is contained in paragraph 2 x of the Case Stated It is worthwhile citing it in full Later on the same date the 18th of November 1998 the accused respondent Mark Cronin was rearrested and recharged with the murder of Georgina O Donnell on foot of a new Charge Sheet It transpired that the book of evidence was in fact available but due to a misunderstanding had not been in court when the case had been called earlier Upon application on behalf of the solicitor for the accused the district judge vacated his earlier order striking out the Charge Sheet number 334 98 of Henry Street and re entered the Charge Sheet Having re entered the Charge Sheet the district judge remanded the accused respondent Mark Cronin to Limerick District Court on the 2nd of December 1998 The purpose was to avoid having to reapply to the High Court for bail on foot of the new Charge Sheet which would also involve the relevant parties entering into a fresh recognizance

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  • of clarity it is appropriate to explain exactly which parts of the other judgments being delivered today I agree with Firstly it is agreed that the first two questions in the Case Stated should be answered in the affirmative and the third in the negative I do not see any difference between the reasoning of McGuinness J and that of Geoghegan J with regard to the second question I agree with both With regard to the answer to the third question I agree with McGuinness J In reality the central point in the case is that the second and third named respondents were entitled to be heard before they could be bound anew by the re entry of the charges That is a point in common between the judgments of McGuinness and Geoghegan JJ I would simply add that I believe that in the ordinary way an order of a District Judge can indeed be recalled and altered in the course of the sittings in the circumstances mentioned in the applicant s submissions That was not the problem here It clearly could have been done so long as the bails persons were permitted to be heard THE SUPREME COURT Record No 341 01 McGuinness J Geoghegan J Fennelly J IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 BETWEEN SUPERINTENDENT ANTHONY KENNELLY Applicant and MARK CRONIN CATHERINE CRONIN AND MARIE CRONIN Respondents JUDGMENT of FENNELLY J delivered on the 18th day of December 2002 For the sake of clarity it is appropriate to explain exactly which parts of the other judgments being delivered today I agree with Firstly it is agreed that the first two questions in the Case Stated should be answered in the affirmative and the third in the negative I do not see

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  • to Dr Murphy immediately before the procedure itself The consent form was signed and was in evidence before the trial court There was sufficient evidence for the finding of the trial judge to be sustainable There was a conflict between the plaintiff and the defendant But there is no doubt that evidence existed that the plaintiff was informed There was the evidence of the defendant and the letter of the defendant to the G P referring to the matter which letter is set out previously in this judgment Allied to the question of consent was a contention made on behalf of the plaintiff that she had not been adequately informed as to the nature and extent of the scar with which she would be left The plaintiff s evidence was that she was told by Mr O Reilly that she would be left with a scar in the form of a thin white line about an inch long She stated that if she had been informed that the procedure would result in a scar approximately twice the diameter of the lesion to be removed she would not have undergone it In conflict with this evidence the defendant Mr O Reilly rejected the suggestion that he had told the plaintiff that she would end up with a one inch scar which would be a thin white line In evidence he explained why he did so as follows Two reasons number one the length of the scar I cannot remember what I have said in the actual dimensions but I made it clear that the scar would be approximately two to perhaps two and a half times the length the diameter of the lesion That is point number one Number two in this part of the thigh in a young girl in anyone the skin is quite tight there so that the scar would have a tendency to stretch and I would have made that clear as well This will almost certainly not be a white line scar This scar would have a tendency to stretch In other words become widened with time I cannot remember if I put dimensions on the width of the scar but I would have made it clear it would not be a nice fine line scar In referring to the scar the plaintiff s expert Dr Goldin acknowledged that while the scar was not an ideal one it was not far off what he would have expected after an incision of this nature at this site The relevant extract is cited below The learned trial judge heard all the evidence tendered on behalf of the plaintiff and the defendant on this point and he was entitled to resolve the matter by relying on the defendant s evidence in preference to the plaintiff s On the issue of whether the surgery was carried out negligently there was evidence in support of the defendant There was the defendant s evidence and the evidence of Mr Goldin who was the expert called on behalf of the plaintiff For example on the transcript of the evidence heard on the 24th October 2000 Mr Goldin was asked and answered as follows 248 Q In relation to the procedure itself by Dr Murphy A The notes indicate a fairly standard type of surgical procedure The notes are not very detailed about exactly what he did and whether or not he took steps to try and reduce tension or not I have to say also that if he did take all necessary steps to reduce tension the outcome may well have been the same It was on the basis of this and other evidence that the defendant submitted that the plaintiff had not established negligence Apart from the above evidence was given by Dr Goldin that 243 A It is not an ideal scar but it is not far off what I would have expected after having an excision of this nature at this site It is perhaps a little wider than one might otherwise normally expect but it is nor far off 297 A Why was the wound open My belief is it is the tension that is the main problem here That the stitches did not hold The skin was too tight The movement of the patient The size of the wound The stitches did not hold I am not suggesting that the surgeon did not tie his knots properly or did not put them in properly but that they were going through fat which is a friable tissue and the stitches did not hold under a tight wound and that is why it opened 298 A I am not suggested that the stitches were put in wrongly I am suggesting the thing was very tight and the stitches did not hold 308 A I would have expected the wound to be tight from that size of excision on a young woman s thigh 309 Q If I understand you then you are telling the court that you think the wound was probably tight because of the position of the wound on Ms McCann is that correct because it was on the thigh A Yes 310 Q Was I correct in understanding you to say that you are not suggesting that there is anything incorrect in the way the stitching was done A Correct 311 Q Are you therefore telling the court that you can have this breakdown of a wound without any fault on the part of the surgeon A Yes 312 Q That is what you believe to have occurred on this occasion A Yes In light of the evidence before the court there is no ground to argue that a finding of the trial judge in favour of the defendant was without basis In the circumstances I could not interfere with this aspect of the determination of the High Court An issue also arose in the High Court as to whether or not the defendant had warned the plaintiff of the danger of infection and that it would make the scar worse I am satisfied that it is quite clear that this did not form part of the plaintiff s case It was not specifically pleaded it was an issue that arose during the case No evidence was given as to this by the plaintiff The plaintiff s expert was not asked as to this issue and gave no evidence as to the matter of a warning of infection At the close of the plaintiff s case there was no case made of medical negligence on the lack of warning of infection However in spite of all of that when this matter arose the defendant gave an answer While the trial judge held it would be inadmissible the defendant said an infection would be a most exceptional situation In any case as has already been pointed out the plaintiff s expert Dr Goldin expressed the view that the resultant scar was more or less what one would have expected from such a procedure on that part of the thigh Moreover there is no evidence that the defendant fell below the standard of care in relation to a warning of infection This was not simple elective surgery It arose in a situation where the plaintiff had a mole which had become itchy and discoloured The plaintiff had seen a programme on television on moles and had mentioned the matter to her general practitioner She was then referred to the plastic surgeon I am satisfied that the submission that there was an unfair trial is not sustainable All the essentials of a fair trial were met The plaintiff had the opportunity to present her case and to cross examine the defendant The absence of an opportunity to make submissions in the circumstances does not render the trial unfair Sometimes events occur in trials that are less than ideal Sometimes in the cut and thrust of a case unfortunate interventions may be made by a judge However in this case the interventions were not such as to render the trial unfair The two books of transcripts were opened extensively on this appeal I have read and considered the evidence There is no doubt that on occasions in cases there are interventions by judges which are made in the heat of the moment Perhaps they are not all as measured as they should be in a perfect world However in this case the plaintiff gave extensive evidence and presented her views Her evidence was called She had the opportunity of presenting her case and of cross examining the defendant s evidence There was a considerable body of evidence and there was some conflict of evidence The trial judge had the duty of determining the facts of making a decision on the conflicting evidence Looking at the case as a whole I would not intervene in the decision of the High Court or hold that there was an unfair trial I am satisfied that there are no grounds as submitted or for the purpose of doing justice upon which to interfere with the ruling of the High Court on this matter 9 Conclusion For the reasons stated I would dismiss the appeal and affirm the order of the High Court THE SUPREME COURT Denham J Murray J McGuinness J No 299 00 BETWEEN ORLA McCANN Plaintiff Appellant and THOMAS O REILLY Defendant Respondent Judgment delivered on the 18th day of December 2002 by Denham J 1 This is an appeal by Orla McCann the plaintiff appellant hereinafter referred to as the plaintiff against the order of the High Court Lavan J made on the 25th October 2000 in which he dismissed the plaintiff s case In this case the plaintiff alleges medical negligence on the part of Thomas O Reilly the defendant respondent hereinafter referred to as the defendant 2 The case was at hearing for two days before the High Court On the second day the 25th October 2000 the learned High Court judge indicated that he did not require any further evidence and that he did not require to hear submissions from either party 3 The plaintiff has appealed against the order of the High Court The grounds of appeal set out in the notice of appeal were that the trial was unsatisfactory in that a The learned trial judge failed to give the plaintiff a fair and proper hearing b The learned trial judge made up his mind prematurely c In particular the learned trial judge made up his mind before the completion of the evidence d The learned trial judge failed to attach any or any sufficient weight to the evidence of the plaintiff and her expert witness e The learned trial judge placed too much reliance upon the evidence of the defendant f The learned trial judge repeatedly interrupted senior counsel s cross examination of the defendant and sought to limit same g The learned trial judge decided the case before the defendant s evidence was completed h The learned trial judge decided the case in the defendant s favour notwithstanding the fact that the plaintiff s evidence that the doctor who performed the procedure in question had failed to give her any or any adequate warning was uncontradicted by the said doctor in the circumstances that the plaintiff s expert evidence and indeed the defendant himself gave evidence that such failure on the part of the said doctor was unacceptable and constituted negligence i The learned trial judge failed adequately or at all to hear and assess the evidence which was proffered and the further evidence which ought to have been proffered before deciding the case j The trial judge failed to deliver a reasoned judgment 4 Facts The plaintiff is a lady in her twenties who was born with a pigmented mole growing on the skin of the lateral side of the lower third of her right thigh In 1993 the plaintiff was referred by her general practitioner to the defendant who is a consultant plastic surgeon at the Blackrock Clinic On the advice of the defendant the plaintiff agreed to have the mole excised and this was done on the 6th September 1993 under local anaesthetic The plaintiff alleges that the defendant was negligent in his care of her in the excision of the mole 5 The issue before the High Court was liability Quantum was not an issue 6 Submissions of the Plaintiff Mr de Blacam S C counsel for the plaintiff submitted that there were three legs to his case 1 The plaintiff stated that she was told by the defendant that she would be left with a one inch scar in a thin white line 2 The plaintiff should have been told on the date of the operation of the nature and purpose of the operation and that she should have given her consent again 3 The manner in which the operation was performed was not in accordance with the proper techniques 7 Submissions on behalf of the Defendant Mr Hanratty S C counsel for the defendant submitted that in essence there were two questions to be answered in the case First whether the Supreme Court should intervene in view of the evidence given in the High Court Secondly whether the Supreme Court should intervene because of the manner in which the trial was conducted He submitted that the answer to both questions was in the negative The court was referred extensively by both counsel to the evidence given in this case over the two days at which it was at hearing before the High Court 8 Decision The plaintiff was born on the 31st December 1974 She had a pigmented mole on her upper right thigh The mole had become itchy and discoloured The plaintiff had seen a television programme regarding the nature of moles When she was at her general practitioner she mentioned the mole and he referred her to the defendant First I shall consider the information given as to the nature of the scar which the plaintiff would incur The plaintiff met the defendant on the 25th November 1993 The defendant wrote a letter to the plaintiff s general practitioner on the 25th November 1993 in which he said Many thanks for referring this lady to me She presents with a small congenital compound naevus on the lateral aspect of her right thigh The risk of malignancy in these lesions is very low but I feel that as a precaution it requires an excisional biopsy I discussed the nature of scars and scarring with her and she is happy to proceed I will be in touch with you in due course The plaintiff gave evidence that on the 25th November 1993 when she saw the defendant Then I asked about the scar and he said it would take the form of a thin white line about an inch long He said he would do it under local anaesthetic 33 Q Did he say anything else about the scarring that would result A No 34 Q Can I just ask you specifically in relation to what is raised in the defence this is the document coming to us from Mr O Reilly where I understand that it will be in his evidence that he discussed with you the possibility of a sub optimal scar greater in diameter to the lesion owing to its nature and location and the fact that the skin would stretch Did he say that to you A No 35 Q Did he say to you as is outlined in his solicitor s letter did he discuss with you the small risk of malignant transformation A Yes but he said this was very slight 36 Q He offered you a scar revisional procedure is that right A Yes 37 Q His solicitors say to your solicitors that Mr O Reilly explained to you that a scar would result and that in this procedure and having regard to the nature of the lesion the scar would be approximately twice the diameter of the lesion to be removed A No 38 Q He did not say that A No 39 Q If he had said anything like that to you would you have gone ahead with the removal of the mole A No 40 Q You did go ahead with the removal of the mole is that not right A I did yes 41 Q I think it was removed on the 6th December 1993 is that right A Yes that is right On the 13th December two sutures were removed and the plaintiff was seen by the defendant Five days later on the 18th December the plaintiff saw her general practitioner and she was told to go to St Vincent s Hospital On the 20th December the plaintiff went to St Vincent s and the wound was found to be infected On the 22nd December the plaintiff went to hospital On the 23rd December the plaintiff saw a doctor and the doctor noted the separation of the wound On the 23rd December 1993 the defendant wrote to the plaintiff s general practitioner This lady was admitted under my care and had excision of a large congenital intradermal naevus on the lateral aspect of her right thigh Unfortunately the primary repair was quite tight and the wound has dehisced over the distal half However it is clean and should heal by wound contraction over the coming weeks I will keep her under review On the 27th January 1994 the defendant wrote to the plaintiff s general practitioner This ladys scar has healed It has stretched slightly and may require revision in the future I will review her again in six months time There was a conflict of evidence as to the warning and information given to the plaintiff about the type of scar she might have While the plaintiff gave evidence that she was told that she would

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  • all its detrimental effects and consequences already fully described which have combined to prevent and render her unfit or unable to carry out her required duty or duties towards A and hence to have failed in such respect In the case referred to Ellis J had found that the parent A W had suffered from ill health primarily on account of a mental disorder and psychiatric illness which required psychiatric care and treatment as an in patient in various hospitals in Dublin from time to time as well as medical treatment observations and assistance as a hospital out patient In the case before him where the circumstances were somewhat similar O Higgins J adopted the views of Ellis J Herbert J in the instant case held that the level of access of P to her child J was not sufficient to off set his finding of failure of parental duty P was he found more a visitor than a parent to J In my view this finding was sufficiently based on the evidence before him and should not be disturbed Section 3 1 I B Under this sub clause the Court must be satisfied that it is likely that such failure will continue without interruption until the child attains the age of eighteen years On the evidence it is quite clear that the situation which has obtained since J was placed in the care of Mr and Mrs H is unlikely to change P herself had expressed herself to be completely satisfied with the excellent care which Mr and Mrs H are giving to her daughter and wishes J to remain with them P s disability as such that as stated by Dr Neville she can scarcely care for herself and would be quite unable to care for J I have no doubt that the trial judge s finding that on the balance of probability there is no likelihood of P resuming the discharge of her duty towards J before J reaches the age of eighteen years is correct Section 3 1 I C Under this sub clause the Court must be satisfied that such failure constitutes an abandonment on the part of the parents of all parental rights whether under the Constitution or otherwise with respect to the child This is the most difficult criterion to establish particularly in the instant case It is as Ms Clissman pointed out notable that the criterion of abandonment is not included in the text pf Article 42 5 In the Reference Case judgment Finlay C J commented as follows The concept of abandonment of parental rights falls to be considered after it has been established that a failure of parental duty for physical or moral reasons has continued for more than twelve months and is likely to continue until the child attains eighteen years of age The sub clause clearly envisages that there might be cases where such a failure was established but an abandonment of rights was not proved An abandonment could be established by evidence of the conduct of the parent or parents concerned which would in certain cases include statements made by them and or the nature and type of the failure and duty which had been established A mere statement by a parent or parents that they wish to abandon a child would not necessarily constitute proof in any particular case of the fact of abandonment but may do so Failure of parental duty established under sub clause I A and B is not of itself evidence of abandonment The necessity for the proof of abandonment indicates a special regard for the constitutionally protected parental rights The interpretation of this sub clause is most fully considered by Denham J in her judgment in Southern Health Board v An Bord Uchtála 2000 1 IR 165 At page 177 of the Report Denham J stated It is understandable that the word abandonment in its ordinary meaning would distress parents The concise Oxford Dictionary defines abandonment as 1 Give up completely or before completion abandoned hope abandoned in the game 2 a Forsake or desert a person or a post of responsibility b Leave or desert a motor vehicle or ship 3 a Give up to another s control or mercy b and abandoned is defined as 1 a Of a person deserted forsaken an abandoned child Thus it raises images of deserting or forsaking a child However in section 3 1 I C the word abandonment is used as a special legal term The section does not require that there be an intention to abandon While there may well be cases under section 3 where there is simple abandonment of a child and an intention to abandon a child these are not the only circumstances where section 3 may be applied The legal term abandon can be used also where by their actions parents have failed in their duty so as to enable a Court to deem that their failure constitutes an abandonment of parental rights The parents in this case did not abandon F O D in the sense of deserting him physically in a place but that does not preclude the operation of the section The word abandon has a special legal meaning A similar approach to the term abandon and consequently abandonment may be seen in the words of Walsh J in G v An Bord Uchtála 1980 IR 32 at page 79 where he stated Article 42 section 5 of the Constitution speaks of the case where parents fail in their duty towards their children for physical or moral reasons it provides that the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child Under that section the State may very well by legislation provide for the failure of the parents and in appropriate cases it may very well extend the law beyond simple provisions for a change of custody A parent may for physical or moral reasons decide to abandon his position as parent or he or she may be deemed to have abandoned that position a failure in parental duty may itself be evidence of such an abandonment At page 179 Denham J went on to say The section does not require that there be an intention to abandon While there may well be cases under section 3 where there is simple abandonment of a child and an intention to abandon a child these are not the only circumstances where section 3 may be applied The legal term abandoning can be used also where by their actions parents have failed in their duty so as to enable a Court to deem that their failure constitutes an abandonment of parental rights The parents in this case did not abandon F O D in the sense of leaving him physically in a place but that does not preclude the operation of the section The term abandoning is wider In the instant case Mr Rogers vigorously argued that P s continuing desire for access to J and her steadfast refusal to agree to adoption could not amount to abandonment of her child He referred to the decisions of Lardner J in the High Court and of this Court in Western Health Board v An Bord Uchtála 1995 3 IR 178 In that case the parents of the child were husband and wife but separated in 1987 because the wife was having an affair with another man In February 1988 they husband had intercourse with his wife without her consent A child was conceived but the wife believed it to be the child of the other man However the husband appeared as the father on the child s birth certificate The wife placed the child with foster parents within days of its birth and then for adoption In May 1989 the child was placed with prospective adopters As the child was being placed for adoption as an extra marital child a declaration was required from the father to the effect that he was not the father He refused to sign the declaration but resisted suggestions that he take a DNA test until May 1991 The test established that he was the father In November 1991 he told a social worker that he wished to obtain the return of his daughter and in December 1991 his solicitor wrote to the Western Health Board in such terms In July 1992 the prospective adopters instituted proceedings for an order under section 3 of the Act of 1988 on the same day the father instituted proceedings seeking custody of the child pursuant to the Guardianship of Infants Act 1964 The application for an order under section 3 of the Act of 1988 was dismissed by the High Court on the basis that while conditions A and B of Clause I of section 3 sub section 1 had been established the Court was not satisfied that the father had abandoned his parental rights On appeal this Court upheld the decision of the High Court Herbert J in his judgment in the instant case held that Apart from a number of months post partum during the entire of the years 1993 and 1994 and for two periods amounting in total to five months in 1997 P if afforded maximum family public health and social welfare assistance could have cared for J even if very inadequately I find that her condition as not such as to prevent her from caring for J to even a minimum degree to adopt the phrase of Keane J as he then was in the case of Southern Health Board v An Bord Uchtála 2000 1 IR 165 at 181 Given the medical and social welfare evidence before the High Court and given what he himself held in regard to P s total failure for physical reasons to care for her child I consider that the learned trial judge fell into error in basing his finding of abandonment on this conclusion The evidence was clear P was unable to fulfil her duty as a parent for physical reasons I would accept the argument of Mr Rogers that there is an inherent contradiction in holding on the one hand that for physical reasons P had totally failed in her duty towards her child and on the other hand holding that she could have cared for her child but failed to do so The question therefore remains as to whether P s failure of duty towards her child amounts to abandonment in what Denham J described as its special legal meaning The statutory requirement is that such failure constitutes an abandonment on the part of the parents of all parental rights While this Court has held that failure of duty does not necessarily or invariably amount to abandonment the requirement of abandonment is not to be considered in isolation separate from the failure of duty It is such failure of duty that may amount to abandonment On the facts I would distinguish this case from Western Health Board v An Bord Uchtála The separated father in that case played no part whatever in the upbringing of his child It must however be borne in mind that he was during that period unaware apart perhaps from a lingering suspicion that the child was his Certainly his wife indicated her belief that it was not When he realised through the paternity test that the child was his he took positive action to assert his right to custody of the child by issuing proceedings under the Guardianship of Infants Act in the District Court Throughout the hearing of the case he asserted that his aim was to regain custody of his child This is very different from the situation in the present case Here P O D has agreed to the continuing care of J by Mr and Mrs H over virtually J s entire life to date She is in addition happy that this situation should continue She has allowed and willingly continues to allow J to become in a practical sense a member of the H family She has in my view abandoned the custody and care of her daughter to Mr and Mrs H She has left and will continue to leave to them the crucial decisions regarding J s health and education and the carrying into effect of those decisions together with the by no means insubstantial financial costs that arise from them In my view this situation amounts in a real and objective sense to abandonment of her rights as a parent As Walsh J pointed out in the passage quoted above a parent may be deemed to have abandoned his position as a parent In my view the infrequent visits by P to her daughter largely initiated by others are not inconsistent with the reality of her abandonment of her position as a parent It is true that P has consistently expressed her opposition to adoption I would however agree that such opposition in itself does not contradict the fact of abandonment The test of abandonment must be an objective one As stated by Denham J in SHB v ABU an intention to abandon is not required This is not in any way comparable to the situation under the Adoption Act 1974 where a mother must agree to place her child for adoption and where a free and willing consent is required as argued by counsel for the appellant see Walsh J in G v ABU This Court has held that a mere statement by a parent or parents that they wish to abandon a child would not necessarily constitute proof in any particular case of the fact of abandonment Similarly it appears to me that a statement by a parent opposing adoption is not in itself a proof of non abandonment If it were otherwise the child centred purpose of the Act of 1988 could always be defeated by a parental statement of opposition regardless of the factual context In the circumstances of this case and on the evidence that was before the High Court I consider that the requirement set out in sub clause I C is satisfied Sub Clause 3 1 I D Under this sub clause the Court must be satisfied that by reason of such failure the State as guardian of the common good should supply the place of the parents It is clear from the evidence before the High Court that P is unable to care for her child J and that she will be unable to do so in the future J due to her cerebral palsy is a particularly vulnerable child who needs the care of loving parents It is in the circumstances clear that the State should supply this care Section 3 1 II A and B This sub clause requires that at the time of the making of the application the child is in the custody of and has a home with the applicants and that this position has obtained for the twelve months immediately preceding the making of the application The unchallenged evidence before the High Court establishes that the requirements of these sub clauses are satisfied Section 3 1 III Under this sub clause the Court is required to be satisfied that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents The Court is required to have due regard to the rights of the persons concerned particular mention being made of the natural and imprescriptible rights of the child In the earlier sub clauses much stress was placed on the duties and rights of the parents Here as in a rticle 42 5 the rights of the child are emphasised and held in balance with the parental rights I have no doubt that the learned trial judge was correct in holding that the requirements of this sub clause were satisfied Section 3 II This sub section provides that before making an order under sub section 1 The Court shall insofar as is practicable give due consideration having regard to its age and understanding to the wishes of the child concerned At the time of the hearing before the High Court J was almost twelve years of age Herbert J took the view that she was of sufficient age and understanding for the Court to take her views into account Accordingly having made proper arrangements he interviewed her in chambers and a stenographer s note of this interview was included with the the transcript provided to this Court In my view the learned trial judge was correct in thus ascertaining the views of the child J expressed clear and reasoned views in favour of her adoption by Mr and Mrs H She wished to have the name of H and to be the same as her brother M who is adopted She also expressed a wish to continue to see P from time to time though not wishing to stay with either her or her family Mr and Mrs H have made it quite clear that they are happy for P to visit J from time to time and there is no reason to believe that they will not continue these visiting arrangements Adoption practice in general has become more open in recent years The old insistence on secrecy and a complete exclusion of the natural mother has virtually gone and it is not uncommon for adopted children to continue to meet their birth parents from time to time Given the attitude of Mr and Mrs H and the express wishes of J there is every hope that a satisfactory arrangement can be reached with the agreement of all parties Section 4 It is clear that the provisions of section 4 regarding the seeking and hearing of the evidence of the parents have been fulfilled in this case Decision For the reasons stated in this judgment I would dismiss the appeal confirm the decision of the High Court judge and make an order authorising An Bord Uchtála to make an adoption order in relation to J in favour of Mr and Mrs H THE SUPREME COURT Record No 147 02 McGuinness J Hardiman J Geoghegan J IN THE MATTER OF THE ADOPTION ACTS 1952 TO 1988 AND IN THE MATTER OF J O D AN INFANT BETWEEN NORTHERN AREA HEALTH BOARD AND W H AND P H APPLICANTS RESPONDENTS AND AN BORD UCHTÁLA AND P R RESPONDENTS AND P O D NOTICE PARTY APPELLANT Judgment of Mrs Justice McGuinness delivered the 17th day of December 2002 This is an appeal by the notice party P O D against the judgment and order of Herbert J delivered the 3rd day of May 2002 wherein the High Court directed pursuant to the provisions of Section 3 I of the Adoption Act 1988 that An Bord Uchtála be authorised to make an adoption order in relation to J O D in favour of W H and P H The Facts The factual background to these proceedings is set out in full and comprehensive detail by the learned High Court judge in his judgment of 3rd May 2002 Since the facts are by and large not in issue between the parties it is sufficient to set them out in summary form here The child who is at the centre of these proceedings J O D whom I shall call J was born on 29th December 1988 and is now almost 14 years of age Her mother P O D who is the notice party in these proceedings came from an extremely deprived family and was as a child for a time placed in voluntary care of the local health board She was diagnosed in 1982 as being mildly mentally handicapped with behaviour problems and difficulties of communication In 1984 she had further problems of aggressive behaviour and was found to have indications of psychosis When J was born P O D was 21 years of age After the birth she was totally unresponsive to the needs of the baby She was unable to feed her or care for her in any way Little is known of the father of J It appears that he once visited P O D and the baby shortly after the birth when they were still in a mother and baby home but P did not want to have anything further to do with him as he had been violent towards her He never supported J financially and it appears has never had any contact with her In accordance with the terms of the Adoption Act 1988 the father was notified by registered post on 26th June 1998 of the preliminary hearing before the Adoption Board in connection with the proposed adoption of J by Mr and Mrs H The registered letter was returned marked not known The father was also personally served by a summons server with notice of the proceedings before the High Court He did not appear before the Court nor did he instruct any one to appear on his behalf On account of P O D s whom I shall call P inability to care for her baby J was admitted to voluntary care with the local health board on the 13th February 1989 when she was six weeks old She was placed with short term foster parents but because she was a very difficult baby this was not successful and she was then placed in a Group Home for Children In July 1989 Mr and Mrs H the applicants were approved as long term foster parents for J and on 17th August 1989 J was placed in their care She has remained in their care continuously since then She was their first child Mr and Mrs H subsequently had another child a boy named M placed with them M is approximately one year younger than J and he has been legally adopted by Mr and Mrs H When J was placed with Mr and Mrs H they were told that she was a normal child However In June 1990 when she was eighteen months old she was diagnosed as suffering from cerebral palsy with right hemiplegia Over the years Mr and Mrs H have provided a happy and secure family life for J The evidence before the High Court was that they had spared no expense or effort in seeking to remedy the physical and mental problems caused by her cerebral palsy Their unstinting care has enabled her to attend a normal school and to do well in her education J sees Mr and Mrs H as her primary parents She has an excellent relationship with M and sees him as her brother During the period 1989 to 1992 Mr and Mrs H established a good relationship with J s mother P From time to time P visited J at their home and they brought J to visit her It appears however that P was unable properly to grasp the nature of J s cerebral palsy In 1992 on account of Mr H s professional commitments the H family moved to the Dublin area This was discussed and agreed with P and with the local health board social workers After the move to Dublin arrangements were made for P to visit J at the H s home in Dublin However in late 1992 P s health deteriorated She was referred to Dr N a consultant psychiatrist In March 1993 she was admitted as an in patient to the Mental Treatment Unit of the County Hospital After her discharge from hospital she received out patient treatment During 1993 P refused to have any contact with her daughter J as it would be too upsetting for her P remained ill throughout 1993 and 1994 She visited J once in 1994 but was too unwell to visit at Christmas of that year During 1995 P saw J four times twice in Dublin and twice in the home of P s sister In 1996 there were two access visits other visits were cancelled because P was again ill In September 1997 P again came under the care of Dr N who diagnosed her as suffering from chronic schizo affective psychosis in addition to her mild mental handicap Dr N who gave evidence in the High Court told the Court that this condition was permanent and could only be controlled by anti psychotic and sedative drugs During the following years P continued to suffer from this illness From time to time she had to spend periods in hospital She was not helped by the fact that conditions in her family home were very difficult they were described as chaotic by Dr N Throughout the period from 1997 to 2001 P had occasional access visits to J generally about twice a year It appears that these were initiated and arranged either by Mr and Mrs H or by the health board social workers Mr and Mrs H had long been anxious to adopt J who had become in a real sense a member of their family P however was unwilling to agree to this despite assurances that she would continue to be able to visit J and despite the fact that she was perfectly satisfied to leave J in the permanent long term foster care of Mr and Mrs H On 16th May 1997 Mr and Mrs H applied directly to An Bord Uchtála to adopt J At this stage their application was not supported by the health board who it appears was concerned about the effects such an adoption would have on P On the 25th May 1998 An Bord Uchtála in accordance with statutory procedures notified P of the application P indicated that she wished to be heard by the Board On 25th August 1998 she gave evidence to the Board She stated that she did not wish J to be adopted She wished her to remain permanently in the foster care of Mr and Mrs H and that she should be able to visit her from time to time During 1998 An Bord Uchtála also interviewed Mr and Mrs H the child J and representatives of the local health board On 13th October 1998 the Board made a declaration pursuant to section 2 of the Adoption Act 1988 stating that if an order was made by the Court under section 3 1 it would subject to sub section 2 make an adoption order in respect of J This declaration was communicated to all the parties involved In June 2000 P was again admitted to hospital as an in patient In a medico legal report to the health board Dr N described P s position as follows In spite of all the above P is capable of functioning in the community in a very limited fashion She has very poor self care skills and neglects personal hygiene diet etc unless she has ongoing supervision If she had her way she would exist on minerals sweets etc She may in the future be a suitable case for medium to long term care This has already been suggested in the past but P is reluctant to stay in hospital as a long stay patient and also has been reluctant to remove permanently to a psychiatric hostel in the community although a place there has been offered to her I understand that the reason for the present concern is that the final adoption of her daughter J is going through Solicitors are anxious to know her capacity to understand issues such as her daughter s placement for adoption Although P s intellectual functioning is somewhat limited she does have a basic capacity to understand There are a lot of references in the notes to her concerns about the adoption in earlier years These were based on emotional reasoning i e she was the one good thing that had happened in her life and she did not want to sever all connection as she saw it In addition she was concerned about the amount of contact with her daughter and felt that should the adoption become final she might lose all contact with her in the future However in latter years P has become more accepting and is now resigned to the fact that the adoption is in the best interests of J Social worker Ms McC has reassured her quite frequently that the adoptive parents have promised to keep in touch particularly at critical times i e Christmas New Year and birthdays She is now prepared to give her consent Despite Dr N s opinion which was shared by social workers in regard to P s state of mind P has not in fact consented to the proposed adoption The matter was at this stage transferred from the original local health board to the health board of the area where Mr and Mrs H now reside and it was decided that that health board would support Mr and Mrs H in their application to adopt J Accordingly the health board appears as a party to the present proceedings On the 8th March 2001 the special summons initiating the present proceedings was issued On the 25th May 2001 the High Court Carroll J appointed Ms Barbara Hussey solicitor to act as Guardian ad Litem for P The proceedings were heard before Herbert J on 24th 25th and 26th October 2001 In addition to hearing the parties the Registrar of An Bord Uchtála and the relevant medical and social work witnesses the learned trial judge interviewed the child J in his chambers in the presence of both sides solicitors A stenographer s note was taken at this interview and it is included in the transcripts provided to this Court The child expressed a clear wish to be adopted by Mr and Mrs H whom she regards as her parents On the 3rd May 2001 the learned trial judge gave judgment and made an order pursuant to section 3 1 of the Adoption Order 1988 authorising An Bord Uchtála to make an adoption order in relation to J O D in favour of Mr and Mrs H Notice of appeal was filed on behalf of the notice party on the 24th May 2002 The Adoption Act 1988 Before going on to deal with the issues which arise in this appeal it is necessary to set out the relevant provisions of the Adoption Act 1988 At a later stage in this judgment I will refer to the history of this Act and to its statutory context The long title of the Act describes it as An Act to provide in exceptional cases where the parents for physical or moral reasons have failed in their duty towards their children for the supplying by the adoption of the children of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Acts 1952 1976 Section 2 of the Act provides 2 1 Where a an application is made by any persons referred to subsequently in this subsection as the applicants to the Board for an adoption order b but for this Act the Board would not have power to make the order and c the Board having heard the health board in whose functional area the applicants ordinarily reside any persons specified in paragraph a to h of Section 16 1 as adopted by this Act of the Principal Act who wish to be heard and any other persons whom the Board in its discretion decides to hear is satisfied that if an order under section 3 1 in relation to the child to whom the application for the adoption order relates were made in favour of the applicants it would be proper having regard to the Acts and to this Act to make the adoption order the Board shall adjourn the application and declare that if the order is made under section 3 1 it will subject to sub section 2 make the adoption order 2 Where a an order is made under section 3 1 and b an appeal against the order is not brought or the order is confirmed on appeal by the Supreme Court the Board if so requested by the persons in whose favour the order was made shall notwithstanding anything in section 10 of the Principal Act unless it is satisfied that the relevant circumstances have so changed since the date of the making of the declaration under subsection 1 in relation to the matter that it would not be proper having regard to the Acts and this Act to do so make an adoption order in relation to the child to whom the order under section 3 1 relates in favour of the persons aforesaid The remaining sub sections of this section are irrelevant Section 3 provides 3 1 Where persons in whose favour the Board has made a declaration under section 2 1 referred to subsequently in this subsection as the applicants request that the health board in whose functional area they ordinarily reside to apply to the Court for an order under this section a if the health board considers it proper to do so and an application therefor in accordance with paragraph b of this subsection has not been made by the applicants the health board may apply to the Court for the order and b if within the period of three months from the day on which the request was given to the health board the health board either i by notice in writing given to the applicants declines to accede to the request or ii does not give the applicants notice under subparagraph 1 of this paragraph in relation to the request but does not make an application for the order under paragraph a the applicants may apply to the Court for the order and if an application under paragraph a or b of this subsection is made and it is made and it is shown to the satisfaction of the Court I that A for a continuous period of not less than 12 months immediately preceding the time of the making of the application the parents of the child to whom the declaration under section 2 1 relates for physical or moral reasons have failed in their duty towards the child B it is likely that such failure will continue without interruption until the child attains the age of 18 years C such failure constitutes an abandonment on the part of the parents of all parental rights whether under the Constitution or otherwise with respect to the child and D by reason of such failure the State as guardian of the common good should supply the place of the parents II that the child A at the time of the making of the application is in the custody of and has a home with the applicants and B for a continuous period of not less than 12 months immediately preceding that time has been in the custody of and has a home with the applicants and III that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents the Court may if it so thinks fit and is satisfied having had due regard for the rights whether under the Constitution or otherwise of the persons concerned including the natural and imprescriptible rights of the child that it would be in the best interests of the child to do so make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants 2 Before making an order under subsection 1 the Court shall in so far as is practicable give due consideration

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  • was a combination of a good day and emergency the Court is unable to accept that as being a full explanation of the discrepancy particularly in view of the fact that while the question of the fallen or the would be fallen electric wires could indeed be thought to constitute an emergency the plaintiff s evidence about the emergency because of the removing of the items from her father in law s house was singularly unconvincing to the Court So the plaintiff s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court This finding of deliberate exaggeration by the learned trial judge is at the core of the defendant s case The issue of exaggeration by a plaintiff in court proceedings is not new It may arise in different ways in different cases There are many possible circumstances Three of these are as follows First there is the case where the whole claim is concocted The accident did not happen or did not happen as claimed This is a fraudulent claim and will be dismissed by the trial judge Secondly there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have This type of approach involves no conscious lying by a claimant The trial judge would determine the value of the damage suffered in accordance with the evidence but would not condemn the evidence of the plaintiff A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries knowing that he or she is exaggerating the injuries and their effects This may take on the appearance of a fraudulent claim The lies of the plaintiff are apparent to the judge It is at this stage that the trial judge who has heard all the evidence and seen the witnesses must exercise his or her judicial discretion At issue is the credibility of the witness If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim However to achieve a fair result in all the circumstances the trial judge may assess the credibility of the witness in light of the evidence of other witnesses It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be made on the evidence of the plaintiff for example in soft tissue injuries The evidence of a plaintiff is critical In a situation where the plaintiff has told a mixture of the truth and lies his or her credibility is completely undermined It is for the plaintiff to prove his or her case on the balance of probabilities It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried Consequently the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies This principle has been stated recently in Vesey v Bus Éireann 2001 I R 192 where it was held that it was not the responsibility of a trial judge to disentangle the plaintiff s case where it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff For the trial judge to make on behalf of the plaintiff the best case he could in such circumstances would risk a perception of bias In this case the medical evidence was in admitted medical reports The learned trial judge held as regard the injuries as follows Following the accident the plaintiff was taken to Loughlinstown Hospital where she received an injection x rays and tubigrip bandage was applied A tentative diagnosis of ligamentous injury was made and she returned to the wedding reception She returned to London the following day and she was in considerable pain Approximately a week later she received a letter saying that there was a possibility that the injury was more than the ligamentous damage which had been previously thought and advising her to see a specialist The plaintiff was seen in a fracture clinic on 4th October 1995 and it was recorded that she had sustained a depressed fracture of the right tibial platter She was admitted to hospital that day under the care of Mr Hunt with a view to operative reduction and fixation of the fracture On 10th October 1995 the plaintiff underwent the operation on right knee arthroscopy and elevation of the lateral tibial platter with bone grafting and external fixation At the operation the depressed lateral tibial platter was elevated and the defect in the cancerous sic bone was grafted using a bone graft taken from the right iliac crest of the plaintiff Fixation was provided by a laterally placed T shaped buttress plate with screws attached There was a long protrudial peripheral scar on the lateral meniscus which did not require surgical intervention Post operatively she received continuous passive movement in order to prevent knee stiffness It is recorded in the report of 27nd sic June that she made an uneventful recovery She was mobilised with crutches and she described of having to use the crutches for a period of nearly a year She described a heavy casing that was imposed on her for sometime as well Also I have to say that she is left as a result of the operation and the subsequent operation to remove the metal from the knee with what has to be considered an ugly and unpleasant scar On 13th November 1995 it was recorded that she was making good progress On 28th February it was recorded that she was fully weight bearing with occasional need of help from crutches The range of movement in her knee from full flexion to 90 degrees At that stage when reviewed in the clinic 6 months after the operation it was considered that she had made a good result following her knee injury but further examination was required I have had the benefit of that report which is 27th June 1996 The next report was in November 1997 that of Mr Roberts the consultant orthopaedic surgeon dated 20th November 1997 That stated that the plaintiff s complaint was of a constant intermittent general ache around the right knee which became painful at times the joint swelling periodically She complained of pain for standing in excess of 15 minutes and walking in excess of 100 yards was impossible without a rest She carried a walking stick continuously outdoors At that stage it was considered that she had made a very good recovery but the general changes are present The report say sic that at the moment these are not gross but progression over the years is likely After the metalwear has been removed some of the pain will resolve Indeed the plaintiff gave evidence to the Court that some hotness which was associated with the metal plate was absent after that It is recorded there that the osteoarthritis is not gross but she is significantly limited in her ability to function normally The next report is undated but received by Bruce St John Blake Limited the then solicitors for the plaintiff in August 1998 That is the report compiled from the notes which I accept as being accurate by Mr Sinnerton consultant surgeon He says she was seen for a final time in June 1996 at which point it was recorded that the result was excellent She was walking without a stick with no significant pain and had a full range of movement of the knee The wound had completely settled and the patient was reported as being extremely happily sic with the result X rays showed a united fracture It was not thought that there was any indication for removing the metalwork unless it was for a specific reason or strong desire from the plaintiff At that stage the opinion was that she had suffered a very significant injury to right knee a fracture of the lateral tibial platter damaging the articular surface on the side but it was reconstructed well The operation notes record central defect and the articular surface of the operation At that stage there was a prognosis as to the likelihood of arthritis that is sic prognosis is irrelevant now as it is common case that the lady has arthritic condition in the knee This then was the medical evidence from the reports It described a significant injury with an excellent result but for arthritis However the plaintiff claims differently It is at this stage of the case that the evidence of the plaintiff and the video evidence are in conflict and are relevant together with the medical reports The learned trial judge held However the plaintiff disputes the finding that the result was excellent at the time She disputes that she was walking without a stick In relation to no significant pain she says it depends what you mean by significant I am ready to accept that subjective and objective assessments of pain are different However I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time In particular I have to say that what was evident to the Court on the video tape was at variance at lease with the general picture of her disability that the plaintiff offered to the Court As for her explanation that this was a combination of a good day and emergency the Court is unable to accept that as being a full explanation of the discrepancy particularly in view of the fact that while the question of the fallen or the would be fallen electric wires could indeed be thought to constitute an emergency the plaintiff s evidence about the emergency because of the removing of the items from her father in law s house was singularly unconvincing to the Court So the plaintiff s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court However there is no doubt that she had a significant injury There is no doubt as well that while she complained of ache afterwards she said that it was a pain pain on a daily basis the Court simply does not accept the evidence of the plaintiff that she is unable to go about her business without a walking stick Nor does the Court accept that the plaintiff is unable to drive a car for any distance of time The Court also does not accept that the plaintiff has made all reasonable efforts to obtain further employment and to get back into the workforce However apart from the nasty injury she sustained the Court accepts without reservation that the plaintiff was depressed and upset and demoralised following and as a result of the accident She suffered a real depression and diminution in the quality and enjoyment of her life However I do not accept that she is not in a position to go back to gainful employment I do not accept that she will have any huge difficulties getting that employment However I have to say that it is actually common case but that her job prospect and her career prospects are diminished by the following factors 1 Undoubtedly by her age which I think will come against her 2 By the fact that she has been out of the workforce for a number of years 3 Notwithstanding the fact that I do not accept her evidence as I have made clear in relation to the level of her disability there is no doubt that she unfortunately has to look forward to the prospect of pain in the future and a strong possibility if not a likelihood of surgical intervention to replace the kneecap Those circumstances are bound to have some repercussions on her job prospects Having considered the transcript of the oral evidence the medical reports and the video I would affirm the finding of the High Court that the plaintiff deliberately exaggerated symptoms Consequently she lost credibility on these issues As the burden of proof is on the plaintiff the loss of credibility undermines her case as to her injuries suffered The burden is on the plaintiff to prove her case on the balance of probabilities on credible evidence Consequently the plaintiff was in danger of losing her entire claim In light of the fact that the trial judge in this case had the benefit of seeing her and hearing her evidence and was satisfied that she did suffer some injuries her evidence stands and is credible insofar as it is corroborated by the medical reports While that evidence is that she has made a good recovery the injury has resulted in arthritis which is progressive and which causes pain and some limitation of movement The condition of the plaintiff was described by Mr M Y Zakaria on the1st March 1999 as She is currently complaining of dull aching pains in and around her right knee with recurrent swelling on exertion Her range of movement is almost full and the knee is mildly tender along the joint line and the scar area laterally In view of the video evidence the medical reports and the finding of the learned trial judge that the plaintiff deliberately exaggerated some of her symptoms her evidence on this topic lacks credibility She has failed to prove this aspect of her case on the balance of probability Unlike the issue of liability where the learned trial judge found that the evidence of the plaintiff was corroborated by that of Ms Condon there is no such corroboration on the issue of quantum I have had the opportunity of viewing the video and considering the medical reports In light of the deliberate exaggeration by the plaintiff as to some of her symptoms that is giving untrue evidence the credible evidence upon which the court may rely is that of the video evidence and the medical reports Consequently determining the matter on the video evidence and the medical reports it is clear that the plaintiff suffered a significant injury which had sequelae which the learned trial judge accepted I would uphold the award of 70 000 00 for pain and suffering to date However in light of the credible evidence I would vary the order of the High Court as to pain and suffering in the future and would award for future pain and suffering 20 000 00 The information which grounded the evidence of Mr Alan Dodds as regards the plaintiff and her ability to work came from the plaintiff In view of her lack of credibility on this issue her evidence on this aspect of the claim may not be relied upon As a consequence neither may the evidence of Mr Dodds be relied upon Thus because of a lack of credible evidence the plaintiff has failed to prove on the balance of probabilities a basis for special damages as to loss of pension and gratuity and loss of earnings into the future Consequently I would determine the quantum as 90 000 00 6 Abuse of Process Deliberate exaggeration by a plaintiff may be such as to be an abuse of the process of the court In such a case it may be appropriate to put this to a witness and for counsel to address the legal issues However that did not occur in these proceedings Consequently apart from raising the matter as an appropriate issue which may be considered in the future in such a case I make no finding 7 Contributory Negligence The learned trial judge accepted evidence that on the journey from the church in Monkstown to the reception in Killiney the bus was driven in a way that was faster and more jerky He had the benefit of hearing the evidence An appellate court should be slow to interfere with such a finding of fact by a trial judge Hay v O Grady 1992 1 I R 210 However having accepted that evidence of the plaintiff over the evidence of the bus driver who maintained that his driving did not change during the trip from Malahide to the church in Monkstown and from Monkstown to Killiney it was an important fact in the case The learned trial judge having held that the driving did change that it was faster and jerky on the latter run consequences flow Having accepted that evidence it then becomes part of the circumstance in which the plaintiff decided to carry a two year old child upstairs Accepting the evidence that the bus was being driven in a fast and jerky fashion it is in those circumstances that at a red light the plaintiff decides to pick up a two year old child and wearing high heels climb the stairs to the upstairs of the bus Before she reaches the top the bus jerked forward and she fell Given that the bus was being driven in a fast and jerky fashion the negligence of the plaintiff is clear Given the factors the proven way in which the bus was proceeding the age and consequent weight of the child the decision to move while the bus was making a journey the footwear of the plaintiff I am satisfied that the learned trial judge erred in apportioning the negligence to the plaintiff at 25 Both the plaintiff and the defendant were equally negligent I would apportion the negligence as against the plaintiff at 50 8 Conclusion In conclusion I would set aside the order of the High Court and I would assess the damages to the plaintiff at 90 000 00 Having determined the contributory negligence of the plaintiff at 50 the sum to which the plaintiff is entitled is 45 000 00 THE SUPREME COURT Denham J McGuinness J Hardiman J No 357 01 BETWEEN SIWSAN SHELLEY MORRIS Plaintiff Respondent And BUS ATHA CLIATH DUBLIN BUS Defendant Appellant Judgment delivered on the 11th day of December 2002 by Denham J 1 Appeal This is an appeal by Bus Atha Cliath Dublin Bus the defendant appellant hereinafter referred to as the defendant from a judgment and perfected order of the High Court O Higgins J of the 26th October 2001 and the 10th December 2001 respectively The proceedings were commenced by Siwsan Shelley Morris the plaintiff respondent hereinafter referred to as the plaintiff 2 High Court Judgment The facts were found by the learned trial judge As to the facts and the issues of negligence and contributory negligence he held On Saturday 22nd September 1995 the plaintiff who at the time of the incident was 45 year old was a passenger in a bus the property of the defendants The bus was privately hired to bring people to a wedding in Monkstown and after that to a reception in Killiney The bus initially brought the plaintiff and other passengers from Malahide to the church in Monkstown and the plaintiff s evidence is that during that time the journey was just normal However on the journey from the church in Monkstown to the reception in Killiney the plaintiff maintains that the diving sic was different that it appeared faster and more jerky The plaintiff stayed in the lower deck somewhere beyond halfway up the bus towards the back her two year old daughter was sitting beside her and another witness was beside the child The child got bored The bus having stopped at a red light the plaintiff took the opportunity to bring the child upstairs She picked up her sic held her on her right hip and started to go up the stairs holding the left hand rail She was approximately one step from the top when the bus jerked forward and then carried on accelerating The plaintiff was thrown backwards Her left hand had been on the railing but she let go because of the jerking of the bus She fell backwards but managed to hold the railings again and ram her right leg and right heel into the third step up and used it as a foot ramp She swung out and landed on her back on the floor with her daughter on top of her She felt her knee creak Her dress was torn and up around her waist She felt stupid and embarrassed and her knee was very painful and swollen She could not stand up and the heel of her shoe came out in the incident That is the plaintiff s account of the accident This account was disputed hotly by the driver of the bus Mr Collins He says that on the day in question his driving from Malahide to Monkstown was uneventful He also maintains that the driving from Monkstown to Killiney was similar and no different than his previous driving He was unfamiliar with the route from Monkstown to Killiney and a person going to the wedding offered to show him the way and told the bus driver to follow his car There was no mention of him putting the boot down and no mention of hurry or delay and the driver said that he had no difficulty in keeping up the car sic because of the heavy traffic His driving was normal and there was nothing unusual When the bus had nearly reached the hotel he heard a commotion on looked sic in the mirror and saw the plaintiff on the floor at the bottom of the stairs He flashed his lights sounded the horn to stop the car which was guiding him and that car pulled in as did the bus The driver does not think that there were any traffic lights just at or near the scene of the accident the bus was moving normally and had not been stationary for some time before the incident He asked the plaintiff if she was all right and she said she was He asked her if she wanted an ambulance and she declined He said that she told him although she denies this that she went upstairs and on the way down the heel of her shoe broke and she fell The driver denies that there was any jerking movement of the bus He denied that he was going faster than normal He denied that he was pulling away abruptly upon being stopped There were no complaints about his driving He said that the red light would stay on long enough to allow a person to go up the stairs The version given by the plaintiff varies substantially with that given by the bus driver and were it a matter of balancing the evidence of one against the other the job of the Court would be very very difficult indeed However the trial judge accepted the evidence of Ms Conlon as to the way the bus was being driven and the circumstances of the event in issue He held I am unable to disregard the evidence of Trudy Conlon who in my view was an extremely impressive witness Careful accurate and in my view to be believed and I accept her account of the accident She substantially corroborates the account of the plaintiff both as to the bus having being sic stopped and moving off abruptly causing her indeed to jerk forward as well as the plaintiff who was upstairs on the bus I believe her and she carries the plaintiff s case on the factual issue Moreover the account of the accident given by the plaintiff herself when she was admitted to St Mary s Hospital in Paddington was consistent with the account that she has given to the Court Were she to be involved in some sympathetic reconstruction to suit her own purposes I doubt that she would have done that at that stage As for the evidence of the bus driver that she told him that she fell because the heel came off her shoe I have no doubt that that is the bus driver s recollection of what happened and I have no doubt that he is not in any way trying to mislead the Court However it seems to me very likely that there was some mention of a heel of a shoe and I would not attach any significance to the fact that he took that message out of the conversation which on my view was not factually a correct account of how the accident happened So it seems to me that in the circumstances that the bus jerked off abruptly and that that was the primary cause of the accident in question Having determined the negligence in issue the learned trial judge then addressed the issue of contributory negligence He held The question of contributory negligence arises then While I feel that the plaintiff herself must take a share of the responsibility for the accident it is true that there is no embargo on people going up to the top of the bus and they are entitled to go up The evidence indeed of the driver is that people would in ordinary journies sic be going up the bus while the bus was moving and there are handrails provided but to do so with a small child on one s hip when it is not necessary to do so seems to me to be not what a prudent person would do To do so with a small child on the hip in circumstances where one had already noticed the jerky nature of the bus when moving off seems to me to amount to a considerable degree of contributory negligence I penalise the plaintiff in contributory negligence to 25 Having found that the defendant was negligent and that there was contributory negligence on the part of the plaintiff the trial judge apportioned the degrees of fault as to 75 to the defendant and 25 to the plaintiff The court assessed damages as follows Special Damages Loss of pension and gratuity 37 500 00 Loss of earnings for the future 25 000 00 General Damages Pain and suffering to date 70 000 00 Pain and suffering in the future 40 000 00 Total award 172 500 00 Thus in accordance with the apportionment determined the High Court ordered that the plaintiff should recover 129 375 00 being 75 per cent of the total award of 172 500 00 and the costs of the action 3 Appeal The defendant appealed against the judgment and order on the grounds that a That the learned High Court judge erred in his findings that the defendant was the prime cause of the accident the subject matter of these proceedings b That the learned High Court judge erred in his finding that there was 25 contributory negligence only by the plaintiff in light of her actions c That the learned High Court judge erred in his assessment of the appropriate damages that should be paid to the plaintiff as a result of the personal injuries suffered by the plaintiff in the accident the subject matter of these proceedings and by virtue of the deliberate exaggeration by the plaintiff of those injuries d That the learned High Court judge erred in his assessment of the appropriate damages for which the plaintiff should be entitled by reason of the future loss of pension earnings when there was insufficient evidence to support such an assessment 4 Evidence In this case there was oral documentary and video evidence before the High Court On the issue of liability the plaintiff s evidence was supported by two other passengers on the bus being Mr Trudy Conlon and Mr Paul McEvoy The only witness for the defendant on this issue was the bus driver The learned trial judge on the issue of liability accepted the evidence of the plaintiff it being corroborated by Ms Conlon As to the issue of damages it was agreed between the parties that the reports of the treating specialists and doctors from the United Kingdom would be received into evidence in substitution for viva voce evidence Thus reports were admitted into evidence from Mr Richard Hampton F R C S dated the 27th June 1996 Mr R Sinnerton F R C S dated August 1998 Mr M Roberts Consultant Orthopaedic Surgeon dated the 20th November 1997 and Mr M Y Zakaria Locum Consultant Orthopaedic Surgeon dated the 3rd March 1999 Viva voce evidence was given on behalf of the plaintiff on the issue of quantum by Mr Eric Kersey who was Payroll and Pensions Manager with the plaintiff s employers by Mr Alan Dodds a rehabilitation consultant and Mr Peter Delaney an actuary No medical evidence was called by the respondent The defendant called only one witness on the issue of quantum and that was Mrs May Feeley a rehabilitation consultant However by agreement the defendant introduced into evidence a video film of the plaintiff showing her engaged in activities Thus in this case this appellate court is in the same position as the trial judge in relation to the evidence from the medical reports and the video evidence 5 Exaggeration The learned trial judge found that the plaintiff had deliberately exaggerated some of her symptoms He held However I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time In particular I have to say that what was evident to the Court on the video tape was at variance at least with the general picture of her disability that the plaintiff offered to the Court As for her explanation that this was a combination of a good day and emergency the Court is unable to accept that as being a full explanation of the discrepancy particularly in view of the fact that while the question of the fallen or the would be fallen electric wires could indeed be thought to constitute an emergency the plaintiff s evidence about the emergency because of the removing of the items from her father in law s house was singularly unconvincing to the Court So the plaintiff s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court This finding of deliberate exaggeration by the learned trial judge is at the core of the defendant s case The issue of exaggeration by a plaintiff in court proceedings is not new It may arise in different ways in different cases There are many possible circumstances Three of these are as follows First there is the case where the whole claim is concocted The accident did not happen or did not happen as claimed This is a fraudulent claim and will be dismissed by the trial judge Secondly there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have This type of approach involves no conscious lying by a claimant The trial judge would determine the value of the damage suffered in accordance with the evidence but would not condemn the evidence of the plaintiff A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries knowing that he or she is exaggerating the injuries and their effects This may take on the appearance of a fraudulent claim The lies of the plaintiff are apparent to the judge It is at this stage that the trial judge who has heard all the evidence and seen the witnesses must exercise his or her judicial discretion At issue is the credibility of the witness If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim However to achieve a fair result in all the circumstances the trial judge may assess the credibility of the witness in light of the evidence of other witnesses It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be made on the evidence of the plaintiff for example in soft tissue injuries The evidence of a plaintiff is critical In a situation where the plaintiff has told a mixture of the truth and lies his or her credibility is completely undermined It is for the plaintiff to prove his or her case on the balance of probabilities It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried Consequently the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies This principle has been stated recently in Vesey v Bus Éireann 2001 I R 192 where it was held that it was not the responsibility of a trial judge to disentangle the plaintiff s case where it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff For the trial judge to make on behalf of the plaintiff the best case he could in such circumstances would risk a perception of bias In this case the medical evidence was in admitted medical reports The learned trial judge held as regard the injuries as follows Following the accident the plaintiff was taken to Loughlinstown Hospital where she received an injection x rays and tubigrip bandage was applied A tentative diagnosis of ligamentous injury was made and she returned to the wedding reception She returned to London the following day and she was in considerable pain Approximately a week later she received a letter saying that there was a possibility that the injury was more than the ligamentous damage which had been previously thought and advising her to see a specialist The plaintiff was seen in a fracture clinic on 4th October 1995 and it was recorded that she had sustained a depressed fracture of the right tibial platter She was admitted to hospital that day under the care of Mr Hunt with a view to operative reduction and fixation of the fracture On 10th October 1995 the plaintiff underwent the operation on right knee arthroscopy and elevation of the lateral tibial platter with bone grafting and external fixation At the operation the depressed lateral tibial platter was elevated and the defect in the cancerous sic bone was grafted using a bone graft taken from the right iliac crest of the plaintiff Fixation was provided by a laterally placed T shaped buttress plate with screws attached There was a long protrudial peripheral scar on the lateral meniscus which did not require surgical intervention Post operatively she received continuous passive movement in order to prevent knee stiffness It is recorded in the report of 27nd sic June that she made an uneventful recovery She was mobilised with crutches and she described of having to use the crutches for a period of nearly a year She described a heavy casing that was imposed on her for sometime as well Also I have to say that she is left as a result of the operation and the subsequent operation to remove the metal from the knee with what has

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  • course of the prosecution of a claim for damages for personal injuries that fact affects only the narrow aspect of the case to which the lie specifically relates It was further submitted that a case such as this of deliberate exaggeration of the effects of the injuries is different in degree from a wholly invented injury Thus while it was conceded that the video tape would make one regard some of the Plaintiff s earlier descriptions as suspect or exaggerated it should not be regarded as wholly undermining her credibility or undermining it in relation to unconnected aspects of the case 50 It was further submitted that the learned trial judge had given all proper weight to the very serious difficulties in credibility which the Plaintiff encountered as a result of her own deliberate falsehoods He had very significantly discounted her claim in relation to special damages This was an adequate reflection of what had happened at the trial It was submitted that even if at the 11th or 12th hour the full extent of the claim intimated in the letter giving particulars and the report of Dr Dodds had been resiled from 51 I cannot accept the latter submission It is noteworthy that at pages 124 125 of the transcript of the first day of the hearing the Plaintiff expressly confirmed that her claim in respect of loss of earnings was in the sum specified in the letter giving particulars When the proposed evidence of Dr Dodds that you are incapable of earning a living or getting an income which is anyway equivalent to the income that you had been earning at the time of the accident was put to her she replied yes absolutely yes Approach to an exaggerated claim 52 I wish to reiterate what was said by this Court in Vesey that the onus of proof in these cases lies on the Plaintiff who is of course obliged to discharge it in a truthful and straightforward manner Where this has not been done a court is not obliged or entitled to speculate in the absence of credible evidence To do so would be unfair to the Defendant Moreover a Plaintiff who engages in falsehoods may expose himself or herself to adverse orders on costs Furthermore as was observed in Vesey there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party 53 This last proposition is well established but has been little considered in the context of personal injuries claims It is perhaps appropriate to comment on the Courts power to prevent or remedy abuse of process at greater length than was done in Vesey 54 In Goldsmith v Sperrings 1977 2 AER 566 Lord Denning had this to say In a civilised society legal process is the machinery for keeping order and doing justice It can be used properly or it can be abused It is used properly when it is invoked for the vindication of men s rights or the enforcement of just claims It is abused when it is diverted from its true course as to serve extortion or oppression or to exert pressure so as to achieve an improper end When it is so abused it is a Tort a wrong known to the law The judges can and will intervene to stop it They will stay the legal process if they can before any harm is done If they cannot stop it in time and harm is done they will give damages against the wrongdoer 55 In Arrow Nominees v Blackledge 2000 2 BCLC 167 the English Court of Appeal said It is no part of the Court s function to proceed to trial if to do so would give rise to a substantial risk of injustice The function of the Court is to do justice between the parties not to allow its process to be used as the means of achieving injustice A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial His object is inimical to the process which he purports to invoke 56 I have no doubt that these principles are equally applicable in this jurisdiction It must not be thought that a falsehood in respect of one aspect of a claim will at worst lead to that particular part of the claim being reduced or disallowed The Courts have a power and duty to protect their own processes from being made the vehicle of unjustified recovery In a proper case this will be done by staying or striking out the Plaintiffs proceedings 57 Quite properly in the circumstance of the present case the Defendant has not sought this drastic relief That is not to say that this relief would be inappropriate in a similar case in the future But it appears to me that a Plaintiff who is found to have engaged in deliberate falsehood must face the fact that a number of corollaries arise from such finding a The Plaintiff s credibility in general and not simply on a particular issue is undermined to a greater or lesser degree b In a case or an aspect of a case heavily dependant on the Plaintiff s own account the combined effects of the falsehoods and the consequent diminution in credibility mean that the Plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case c If this occurs it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim or a particular aspect of it from the unsatisfactory state in which the Plaintiff s falsehoods have left it Liability 58 In this case the deliberate exaggeration of the Plaintiff related to the extent and duration of the effect of her injuries It was undisputed that the Plaintiff sustained a significant injury on the 22nd September 1995 At the trial there was a lively dispute as to liability for that injury One of the Appellant s principle contentions in this Court was that the findings on liability that the Defendant was 75 responsible and the Plaintiff 25 be reassessed is specifically in light of the Plaintiff s diminished credibility Alternatively it was argued the proportion should be reassessed even on the Plaintiff s version of the facts The facts 59 On the 22nd September 1995 the Plaintiff her husband and two year old daughter were part of a group of people who had attended a marriage ceremony in a church in Monkstown Dublin They were travelling in the wedding bus from the church to a wedding reception at a hotel in Killiney Previously they had been brought to the church from the Grand Hotel in Malahide on the same bus It was undisputed that the Plaintiff had suffered a fall on the stairs of the bus The dispute related to the circumstances of the fall 60 The Plaintiff said that she had no complaint about the driving of the bus from Malahide to the church It just seemed to be okay just normal She said there were about fifteen people on the bus She was seated on the lower deck with her daughter She said the driver did not know where the hotel was when this transpired at the Church it was arranged that someone would drive ahead of the bus in order to show the driver the way On this leg of the journey the Plaintiff said the mode of driving of the bus was very different It just seemed more faster and more jerky It pulled off from traffic lights very quickly this was what she meant by jerky She said her young daughter was getting a bit agitated because we were going stop start stop start and she was getting bored with sitting downstairs She said that one of the other people on the bus had gone upstairs and come back down and the child said she wanted to go upstairs because of the view The bus stopped at a light and she decided to take the opportunity to go upstairs with the child She picked the child up and put her on her right hip and started to go up the stairs She was holding on to the rail with her left hand The bus was still stopped at lights at this stage When she was about one step from the top of the bus it jerked forward and with that I went flying backwards She had no warning from the driver or any indication that the bus was to start moving 61 This account broadly was corroborated by Ms Trudy Conlon the Plaintiff s sister in law 62 The defence case as put to Mrs Shelly Morris was that she went up the stairs carrying the child and she stumbled and slipped It was also put to the Plaintiff that her husband who was present believed that the accident was caused by the heel coming of your shoe as you were either ascending or descending the stairs This apparently was on the basis of what the husband had said to the bus driver after the accident However the Plaintiff denied this and the husband and was not called to give evidence despite having seen her fall It was agreed that the heel had come off her shoe and that she had kept the shoes but it was denied that the heel coming off was the cause of the fall 63 The bus driver denied strongly that there was any variation in his standard or manner of driving between one leg of the journey and the other or that the bus jerked forward at any stage He said that the bus was in motion in the normal fashion immediately prior to his noticing the commotion caused by the Plaintiff s fall and it had not been recently stopped 64 The learned trial judge resolved this issue substantially on the evidence of Trudy Conlon Of this he said that she in my view was an extremely impressive witness careful accurate and in my view to be believed and I accept her account of the accident She substantially corroborates the account of the Plaintiff both as to the bus having been stopped and moving off abruptly causing her indeed to jerk forward as well as the Plaintiff who was upstairs on the bus I believe her and she carries the Plaintiff s case on the factual issue Submissions on this issue 65 On behalf of the Plaintiff it was strongly urged that Mrs Conlon s evidence should be discounted This was on the basis that it coincided with that of the Plaintiff who was discredited Furthermore it was submitted the learned trial judge should have viewed her evidence with scepticism because she was a sister in law of the Plaintiff and is the woman shown talking to the Plaintiff on the video Because she saw the Plaintiff s actual capabilities on the occasion the video tape was made it was submitted she knew the Plaintiff s evidence as to disability to be false It was also suggested that the learned trial judge should have drawn an inference adverse to the Plaintiff from the failure to call the husband Decision on liability 66 In light of the Plaintiff s gravely damaged credibility there is a definite attraction to these submissions However in my view it would not be proper to accede to them Firstly the learned trial judge came to the conclusion that he did in the full knowledge of the Plaintiff s gravely compromised credibility Secondly this Court must always bear in mind what was said by McCarthy J in the well known case of Hay v O Grady 1992 1 IR 210 at 217 1 An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but also observes the manner in which it is given and the demeanour of those giving it The arid pages of a transcript seldom reflect the atmosphere of a trial 2 If the findings of fact made by the trial judge are supported by credible evidence this Court is bound by those findings however voluminous and apparently weighty the testimony against them 67 I do not believe it would be fair to regard Mrs Conlon s evidence as falling outside the category of credible evidence merely because of her relationship to the Plaintiff and her presence with the Plaintiff on the occasion of the video tape While she undoubtedly had an opportunity to observe the Plaintiff walking carrying loads holding a child and playing with dogs on that occasion and quite possibly to observe her on other occasions as well there is no evidence to show that she was aware of the very far reaching nature of the claim the Plaintiff was making In these circumstances one must regard her as a credible witness on whom the learned trial judge was entitled to rely 68 The consequence of this finding is that one must accept that the immediate context of the accident was that described by the Plaintiff a decision to go upstairs when the bus was stationary at traffic lights and a fall when the bus took it off from the traffic lights in a manner less smooth than would have been possible 69 However the Court is not bound by the learned trial judge s assessment of the degrees of fault arising in those circumstances I am of the view that the Plaintiff s action in needlessly ascending the stairs of the bus carrying a two year child in her right arm was a significant contributory factor to the accident The only reason given for ascending the stairs was that the child wanted to do so it was plainly the responsibility of a parent to refrain from gratifying an impulse of the child that exposed both of them to danger This danger was still more obvious if as alleged the manner of driving had deteriorated on the second leg of the journey Having regard to the fact that there was ample accommodation downstairs for all passengers that the driver had seen the Plaintiff and her child seated downstairs and that all passengers were going to the same destination the driver had no positive reason to consider the possibility that a woman with a two year child in her arms would ascend the stairs I would divide the responsibility for this accident in equal measure between the Plaintiff and the Defendant Damages 70 The learned trial judge awarded damages as follows i Loss of pension and gratuity 37 500 ii Loss of earnings for the future 25 000 iii Pain and suffering to date 70 000 iv Pain and suffering in the future 40 000 71 The sums for general damages are expressed to take into account the omission to make any separate award for loss of earnings to date 72 There is no doubt as the learned trial judge has found that the evaluation of damages is rendered more difficult by the fact that she deliberately exaggerated aspects of her symptoms The learned trial judge specifically rejected the contentions that she was unable to go about her business without a walking stick that she was unable to drive a car for any distance or time and that she had made all reasonable efforts to obtain further employment and get back into the work force He held There is no way of knowing what pensionable employment she will take on and no way of knowing what loss of earnings she would have He accepted that she will be in a position to work and that earning capacity is diminished 73 In my view having regard to those findings the awards for loss of pension and gratuity and loss of earnings into the future are purely speculative From the point of view of the Plaintiff this was an extremely benevolent speculation because having regard to her falsehoods she had simply failed to discharge the onus of proof in these regards Having regard to the principles set out earlier in this judgment and in Vesey it is not proper to engage in this benevolent speculation nor is it fair to the Defendant to do so Accordingly I would set aside the awards made in respect of loss of pension and gratuity and loss of earnings for the future 74 I would uphold the award of 70 000 made in respect of pain and suffering to date and including loss of earnings to date There is no doubt even on the medical report most favourable to the Defendants that this was a significant injury giving rise to a considerable measure of pain and discomfort and inconvenience The learned trial judge also accepted that the Plaintiff suffered depression upset and demoralisation Having regard to the evidence at trial including the video tape one may doubt how long these afflictions lasted but the sum assessed is not wrong in principle 75 In relation to pain and suffering in the future there is no doubt that there will be a measure of this but it is clearly much less than the Plaintiff suggested One cannot fail to reflect under this heading too the manifest variation between her self described condition at present and her actions and demeanour on the video tape Bearing in mind the descriptions and prognoses of her own doctors substantial damages under this heading are appropriate Bearing in mind the fact that she is now plainly much better than she described herself as being an award of 20 000 under this heading is sufficient 76 I would accordingly set aside the award of the learned trial judge and assess damages under the headings set out above at a total of 90 000 Since the Plaintiff is at fault to the extent of 50 in relation to the accident I would grant a decree in the sum of 45 000 2002 IESC 74 THE SUPREME COURT 357 01 Denham J McGuinness J Hardiman J Between SIWSAN SHELLY MORRIS Plaintiff and BUS ÁTHA CLIATH Defendants JUDGMENT of Hardiman J delivered on the 11th day of December 2002 1 The Plaintiff who is a Welsh lady now aged 52 was involved in an accident in Dublin on the 22nd September 1995 She was a guest at a wedding and was conveyed in the Defendant s double decker Wedding Bus to the Church and from the Church to the reception On the latter journey she suffered a fall on the stairs of the bus The circumstances of this incident will be discussed later The initial focus at the hearing of this appeal was on the question of Special Damage specifically loss of earnings It was argued that the Plaintiff s case on this aspect was consciously false and that this fact had consequences for the case as a whole The Plaintiff s proceedings 2 The Plaintiff instituted proceedings in respect of this incident on the 7th January 1997 In her Statement of Claim delivered the following month she claimed by way of special damages loss of earnings which were described as unascertained and continuing At the time of the accident she was employed as a community worker by a public authority in London 3 On the 8th November 1999 the Plaintiff s solicitors provided further particulars of the claim stating that she had post traumatic degenerative arthritis which is progressive in nature and would require a knee replacement at some time in the future The letter ended She has had to retire from her work on health grounds and has suffered a loss of income to date and will do so into the future in respect of which actuarial evidence will be led 4 On the 26th June 2001 the Plaintiff s present solicitors gave particulars of special damage claiming 114 281 37 in respect of loss of earnings to date and 298 037 00 loss of earnings into the future These sums totalling 412 318 37 clearly represent a substantial claim for loss of earnings alone 5 The basis of the claim for loss of earnings was that according to a further letter from the Plaintiff s solicitor of the 4th July 2001 she was incapable by reason of ill health of discharging her duties with the Hammersmith and Fulham Social Services She had been employed by that body as co ordinator of Independent Living Schemes and retired from it on the 22nd September 1996 Subsequent to this according to the letter she moved to Wales where she has been unable to find similar employment 6 She also advanced a substantial claim in respect of loss of pension The opening and the Plaintiff s evidence at trial 7 The trial took place in the High Court O Higgins J on the 24th to the 26th October 2001 In opening the case her counsel stated She was declared unfit for work by her local borough in June 1997 but in fact it seems to have been backdated to September of 1996 so the actual declaration made in June of 1997 was dated back to some examination that was carried out in September 1996 That was permanent employment and she could have remained there until retirement age and she was on a pension scheme or contributing to it and she would have retired with a nice pension Since then she has moved to various places in Wales At the moment she is living in an isolated rural area in Wales and there is no employment there for her She does not drive a car she did have a provisional licence at one stage but with her injury she cannot really drive a car and has not got a full licence The bus service is fairly limited She is from Wales herself so she is happier living there than in a big urban environment like London but unfortunately for her earning capacity it is very difficult and practically non existent There are some jobs in Wales for which she would be qualified but she physically would not be in a position to carry out those jobs because they involve and commuting and being able bodied 8 Notwithstanding this and notwithstanding the particulars of special damage in the nature of loss of earnings quoted above counsel had the following to say about the claim for loss of earnings It may well be a case that for some of the time in the past or for some of the time in the future it may be more appropriate to deal certainly in the future deal with the loss of earnings figure as an item included in the general damages rather than a distinct heading of future special damages 9 In her oral evidence the Plaintiff gave the following evidence relevant to the loss of earnings claim She said she was born in Pembrokeshire in January 1950 After school she studied dress designing and embroidering She moved to London in the late 1960 s and worked in the art department of a magazine In 1969 she moved to Formentor in the Balearic Islands where she was self employed I did dressmaking and I found houses for people I did embroidery and crotchet work made jewellery She gave birth to a son in the year 1970 returned to the UK and I started up a school with my son an alternative education school and I was involved in education at home Again I was still making clothes for people as commissions and making jewellery as self employed She moved back to Spain in the early 1970 s and then back to Wales She became involved in the music business as a percussionist drummer playing drums timpani drum bongos and generally all percussion From about 1980 onwards she had been involved with her then ten year old son working with young people and I decided I would use my skills with young people teenagers in a youth club 10 The Plaintiff appears to have spent the succeeding years educating my son at home and also working with teenagers Young people would come to our house and I started to work as a youth worker at that time This however was on a voluntary basis She then began to train as a part time youth worker She did a two year certificate in Reading University in 1986 1987 which allowed her to get a job working in youth clubs This qualification is also referred to in the transcript as a diploma and as a degree In 1988 89 she got a job with Hammersmith and Fulham Social Services at which time she would have been about thirty nine years old She says she worked with black people Bangladeshi unemployed people single mothers and travellers Subsequently they decided to redeploy the community workers into positions and into groups for service I was redeployed into the position of co ordinator of Independent Living Services 11 This involved working with disabled people She described it as follows I would visit a service user who was disabled in their own home and assess them with a Social Worker for their availability for community care That would mean that they would be able to receive direct payments in order to enable them to employ their own personal care assistants I had to supervise all the carers at work for disabled people 12 She said she would go out to see and assess people on referrals from social workers She travelled by bicycle because the area is a small one and there is very little parking available Travelling to these peoples homes was the only physical activity involved in the job 13 In subsequent evidence the Plaintiff said that her effective complaint related to her right knee No medical witness was called but a number of reports were by agreement given to the Court She could not kneel on her knee she could not do weight training or body building as she had done before the accident She had put on a lot of weight She could not cycle she had much less strength in her knee She had originally been on crutches At page 72 of the transcript of Day 1 of the trial she was asked Do you need anything for walking now that the two crutches and replied a stick She used this pretty much everyday but did not use it in her home because we have got banisters also because the house is very small She complained that she had slowed down in every way I am completely slow now compared to how I used to be Asked whether she needed a stick in order to walk or more as a psychological crutch she said No no I need to use the stick for the walking it helps me She could not stand or sit for long 14 On the topic of her employment she confirmed that she had never gone back to work after the accident For the first year she wasn t able to walk Asked what was to prevent her from going back to work after that period she said Because I was told by my doctor that it would never get better unless I had the plate removed from my knee Asked specifically if she would have been able to work after the removal of the plate April 1998 she said By that time I was living in Wales I had gone back home to live in that year 1996 1997 Furthermore she claimed I couldn t walk The pain was terrible unbearable Equally she was very very depressed She was seeing her doctor once a month and also had physiotherapy At this time she was unemployed and was on incapacity benefit She said that she was not able to work She did not think of looking for work of any sort because I couldn t physical sic work at all with my knee because I knew I had to wait for the operation to have the plates removed She was also minding her daughter who was born in 1994 15 Asked whether her knee had improved after the plate was removed she said When the plate was removed the heat that I was experiencing and the swelling was diminished but I would still get it occasionally depending on whether I moved in a jerky way or what I did 16 She went on to describe how she had not done any work since the accident except a very small amount of teaching young people and one musical gig for which she received 50 17 In cross examination she confirmed that she was making the claim for loss of earnings described above on the basis that she was completely incapacitated from working in the job she was doing or any other work of the same kind 18 One of her own medical reports from Mr Simerton FRCS dating from August 1998 was put to her This stated She was seen for a final time on the 26h June 1996 at which point it is recorded that the result was excellent She was walking without a stick with no significant pain and had a full range of movement in the knee The wound had completely settled and the patient was reported as being extremely happy with the result 19 The surgeon summarised her position as being that she had suffered a very significant injury to her right knee a fracture of the lateral tibial plateau damaging the articular surface on that side Although this was reconstructed well the operation notes record there was a central defect in the articular surface after the operation However she has made an excellent recovery from this operation and has according to the note regained the full range of movement and is fully mobile with only minimum pain 20 The Plaintiff said this report was inaccurate She did not agree that the results were excellent The surgeon was wrong when he said she had no significant pain He was wrong when he said she had full range of movement in the knee She claimed he never actually saw me for that apparently meaning the report She said that Mr Simerton s conclusions could not have been based on her medical notes She said she always had a stick and he was quite wrong in his observation to the contrary She said that the portion of the report headed Opinion and Prognosis was not an accurate record of the progress she had made in Mr Simerton s hospital She stressed several times that she always had a stick which she regarded as essential for her to enable her to get around and also it gives a sign to people to take a wide berth around me 21 The Plaintiff agreed that she had told Mr Roberts the surgeon who removed the plate for her in 1998 that she could not walk for more than a 100 yards and that she carried a stick continuously outdoors After that operation she said her range of activity improved only slightly She said that she generally needed a stick outdoors but some times sitting down in the sun or getting washing in off the line she might not need a stick There was not much else she could do outdoors without a stick She needed a stick in all her outdoor movements with those exceptions She confirmed what she had earlier said that she could only go up steps one step at a time but said that some days I might feel strong and I might be able to walk up in an ordinary way She had not made this qualification in direct evidence She would only be able to mount steps in the ordinary way once or twice a year Asked how she would descend the steps she said It depends if I was carrying anything it depends if I have my daughter in my arm it can depend on a lot of things She immediately amended this to If I had my daughter in my hand She denied that she carried her daughter on occasion she said there was no way she could lift or carry her or indeed any child She would not like to carry anything requiring two hands especially on a downward slope The Rehabilitation Consultant 22 The Plaintiff also relied on the evidence of a Dr Alan Dodds a rehabilitation and employment consultant based in Nottingham His instructions in relation to the details of the Plaintiff s working history and her potential for the future derived from information given to him by the Plaintiff herself This was very clear He said The Plaintiff reported to me that she had been designated as unfit for work medically and it is my understanding that she is still considered medically unfit for work 23 In relation to her ability to drive he said The Plaintiff led me to believe that although she possessed a provisional licence she did not in fact drive a motor vehicle She told me she could sustain travel as a passenger in a motor vehicle for a distance of some twenty miles before experiencing discomfort 24 In relation to her ability to walk Dr Dodd said The Plaintiff told me that she could walk up to a distance of 200 yards with the aid of a stick 25 In cross examination Dr Dodds confirmed that the Plaintiff had led him to believe that without a stick her walking tolerance would extend to perhaps 50 or 100 yards only Thereafter he was led to believe she was unable to continue walking because of her physical disability 26 Dr Dodds accepted that if she were physically able to perform it employment as a social worker in South Wales was available He confirmed that if she had got the additional qualification she had been studying for at the time of her accident she would be still more employable that there were many social work jobs available which did not involve any field work at all He also stated that One would expect an employer or health authority to be particularly compliant or careful or sensitive to the needs of one of their employees He added that Many Social Service Departments actively encourage applications for people with disabilities 27 It should also be noted that the Plaintiff called the evidence of an actuary and of a person from her former employers to give evidence of her pension entitlements at various ages The letter of the 26th June 2001 28 This was the letter referred to above in which the Plaintiff claimed a total of 412 318 37 in respect of loss of earnings These were plainly calculated on the basis that she would be at a total loss of earnings from now until her expected retirement date Only social welfare payments were contemplated in a reduction of this figure insofar as these payments were legally reckonable Cross examination and video evidence 29 It transpired in the course of cross examination that on the 24th September 2001 exactly a month before the trial in the High Court the Plaintiff had been observed by an investigator retained by the Defendant over a considerable period of time and a video tape of her movements over much of that day was made This video tape was played in the High Court and again in this Court It shows the Plaintiff generally in the company of other persons especially her father in law and sister in law walking on the public street crossing

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  • the Schedule the Oireachtas sought to exempt and did exempt from the definition of election expenses all the matters listed in sub paragraphs a to g of Paragraph 2 Had that not been the intention of the Oireachtas it would simply not have enacted Paragraph 2 Mr Rogers further submitted that far from the expenditure being prohibited by the 1997 Act or indeed any other legislative provision the impugned provisions constituted an express recognition that the facilities and services in question were used for electoral purposes by outgoing representatives The legislature had gone on expressly to exempt those representatives from having to include the facilities in question in the computation of electoral expenses The inclusion of the expenses in the category of returnable expenses followed by their express exemption was a clear acknowledgement that the expenses in question could and would be used for electoral purposes Mr Fitzsimons SC further submitted that in the event of the appeal not being allowed this court should rule on whether the effect of the judgment was prospective only in accordance with the procedure adopted by the court in Murphy v Attorney General 1982 IR 241 He submitted that since following the enactment of the 1997 Act outgoing Dáil Deputies Senators and MEPs had acted in accordance with the terms of the legislation and had not treated the expenses in question as election expenses it would be unjust at this stage to expose them to the possibility of being prosecuted for a criminal offence He submitted that in these circumstances the court should determine that the effect of the finding of constitutional invalidity if that was the outcome of the appeal should be prospective only and should not have effect in relation to any expenditure by candidates at the General Election earlier this year The Applicable Law It is clear in accordance with the decision of the former Supreme Court in In Re Article 26 of the Constitution and the Offences Against the State Amendment Bill 1940 that where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy such repugnancy as a matter of construction must be clearly established In this case it is accepted on behalf of the appellants respondents that if the impugned provisions fall to be construed in the manner contended for on behalf of the applicant as the High Court decided they do they would be clearly invalid having regard to the provisions of the Constitution as constituting unequal treatment of candidates for which no justification had been or could be offered In arriving at a conclusion as to whether the impugned provisions are to be construed in the manner contended for on behalf of the appellants the court must bear in mind the rule of double construction as it has sometimes been called laid down in the judgment of the court as delivered by Walsh J in McDonald v Bord na gCon and Another as follows The Act being an Act of the Oireachtas is presumed to be constitutional until the contrary is clearly established One practical effect of this presumption is that if in respect of any provisions or provisions of the Act two or more constructions are reasonably open one of which is constitutional and the other or others are unconstitutional it must be presumed that the Oireachtas intended only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant Conclusions The wording of Paragraph 2 a and c of the Schedule to the 1997 Act is in the opinion of the Court plain and unambiguous It provides that the expenses therein mentioned including matters such as the provision of office accommodation secretarial facilities and telephone and postal facilities to members of the Oireachtas and of the European Parliament are not to be treated as election expenses for the purposes of Part V of the 1997 Act No other construction of the provisions in question is in the view of the court reasonably open It may well be the case as urged by Mr Fitzsimons that the Oireachtas did not contemplate that expenditure of this nature would be availed of by outgoing members of the Oireachtas or members of the European Parliament for the purposes of their election campaigns It may be that they were intended to be availed of only for the performance of their duties as legislators or public representatives The fact remains that the Oireachtas in plain and unambiguous language said that such expenditure was not to be treated as election expenses The fact if it be the fact that the Oireachtas did not contemplate the utilisation of these expenses for the purpose of election campaigns and may even be deemed to have regarded it as in some sense improper cannot conceivably justify a construction of the provision which far from being reasonably open is directly at variance with what the legislature actually said The use of the words for the avoidance of doubt at the beginning of Paragraph 2 does not point to any different conclusion That expression is of course frequently employed in statutes when the legislature is expressly refraining from altering the law in any way and seeks to make it clear beyond doubt that the existing law remains unaltered If the expression had been used solely by way of introduction to the impugned provisions their use might have lent some support however tenuous to the construction urged on the court on behalf of the applicant Where however they are used by way of introduction to the removal from the category of expenses of all the matters set out in Paragraph 2 they are wholly devoid of any such significance Thus to take the most obvious example the removal by virtue of paragraph g of casual expenditure where it did not exceed 100 from the categories of election expenses could not on any view be regarded as simply a re statement for the avoidance of doubt of an already existing law The court is accordingly satisfied that the decision by the High Court that the provisions in question were invalid having regard to the provisions of the Constitution was correct and should be affirmed As to the application on behalf of the respondents appellants that this court in the event of the appeal being disallowed should declare that the order of the High Court declaring the relevant provisions to be invalid having regard to the provisions of the Constitution should be prospective only in its effect and should not affect any expenditure by members of the Oireachtas at the recent General Election this was an issue upon which no ruling was made in the High Court The jurisdiction of this court is in general an exclusively appellate jurisdiction and the question accordingly arises as to whether the court has any jurisdiction to grant an order of the nature sought on behalf of the respondents appellants It is true that such a course was adopted in Murphy v The Attorney General the court however notes that the circumstances in that case were exceptional and it may be unique Assuming however that the court has jurisdiction to make a declaration of the kind sought by the respondents appellants the court is not satisfied that it would be appropriate to grant relief of that nature in the circumstances of the present case As was made clear in Murphy v The Attorney General the effect of the decision of the court in this case is that the impugned provisions were invalid ab initio and have never had the force of law It is true that in that case this court held that the plaintiffs were the only taxpayers entitled to maintain a claim for restitution of tax in pursuance of the court s decision unless proceedings had been instituted by any other taxpayer challenging the validity of the impugned sections That case was however concerned with the possible repayment by the State to taxpayers of substantial sums of money which had been collected by the State for many years in pursuance of statutory provisions presumed to be constitutional It was held that applying the normal principles of the law of restitution the monies save in the case of the plaintiffs were not recoverable No such considerations arise in the present case all that is prayed in aid in support of making the proposed declaration is the possible exposure of the deputies and senators concerned to criminal prosecutions even though they participated in the General Election on the basis of the provisions of an Act ostensibly in force at the time and moreover when the Commission in its guidelines advised them that they could so act Whether in such circumstances any such prosecutions should be instituted and if so how they should be dealt with by the courts are not matters which this court feels it should anticipate The court accordingly is satisfied that it should not make any declaration of the nature sought on behalf of the respondents appellants THE SUPREME COURT Keane C J Denham J Murray J McGuinness J Hardiman J 168 02 BETWEEN DESMOND KELLY APPLICANT RESPONDENT AND THE MINSTER FOR THE ENVIRONMENT IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELLANTS JUDGMENT of the Court delivered the 29th day of November 2002 by Keane C J Introduction The applicant stood as a candidate for Dáil Eireann in the General Election which took place earlier this year He was aggrieved by the fact that outgoing members of the Dáil the Seanad and the European Parliament did not have to include in the return of their election expenses the property services and facilities paid for out of public funds to which they were entitled and which as he claimed they made use of in their election campaigns This he said gave those candidates who unlike him were sitting Dáil deputies Senators or MEPs an unfair advantage In the result he claimed the relevant provisions of the electoral legislation were unconstitutional The claim succeeded in the High Court and the respondents appellants have now appealed to this court The relevant legislation The Electoral Act 1997 hereafter the 1997 Act imposed limits for the first time on the expenditure which could lawfully be incurred by candidates in the course of their individual election campaigns Section 31 1 a as amended by the Electoral Amendment Act 2001 defined election expenses as all expenses falling within paragraph b incurred in the provision of property goods or services for use at an election in order to promote the interests or policies of political parties promote or oppose the election of candidates or otherwise to influence the outcome of the election Section 32 of the 1997 Act then imposes a limitation on the election expenses which may be incurred by or on behalf of a candidate at Dáil elections Under S 36 a statement must be furnished to the Public Offices Commission established under the Ethics in Public Office Act 1995 hereafter The Commission within 56 days following the polling day at an election of all the election expenses incurred in relation to the election Section 43 of the Act provides that a person is to be guilty of an offence who exceeds the limitation on expenses imposed by the Act or fails to furnish to the Commission within the specified period a statement of election expenses which is false or misleading Section 31 1 b of the 1997 Act as amended by the Electoral Amendment Act 2001 provides that the expenses mentioned in the foregoing definition of election expenses shall be those and only those set out in the Schedule to this Act Paragraph 1 of the Schedule sets out the expenses referred to in S 31 1 b It is unnecessary to set them out in extenso in this judgment they comprise advertising publicity election posters and other election material office and stationery expenses transport and travel market research and expenses in respect of campaign workers Paragraph 2 which is the crucial paragraph for the purpose of these proceedings then provides that for the avoidance of doubt nothing in paragraph 1 of this Schedule extends to a any of the matters referred to in sub paragraphs i v of Section 22 2 b or in the case of a presidential election subparagraphs i v of S 46 2 b b expenses incurred in the provision of property goods or services used at an election where such property goods or services was or were provided in respect of a previous presidential Dáil European or local election and the cost of providing such property goods or services was included in the statement of election expenses furnished to the Public Offices Commission or to a local authority in relation to the said previous election by the national agent of the party or designated person of the party or election agent of the candidates or candidate as the case may be c any expenses in respect of any property services or facilities so far as those expenses fall to be met out of public funds d the payment by or on behalf of a candidate of the deposit under S 13 of the Act of 1997 or S 47 of the Act of 1992 as may be appropriate e expenditure on the purchase of copies of the Register of Electors or parts thereof f the reasonable living expenses including accommodation of a candidate or any person or persons working on behalf of the candidate on a voluntary basis or g any sum dispersed by an individual out of the individual s own resources for any minor expenses not exceeding 100 00 in any one payment lawfully incurred in relation to the election if the said sum is not repaid to the person Section 22 2 b of the 1997 Act which is referred to in subparagraph a above deals with donations to political parties Subsection 2 b provides that the matters specified in sub paragraphs i v are to be deemed not to be a donation It is agreed that only the following subparagraphs are relevant to these proceedings i Free postage provided for a candidate under Rule 22 of the Second Schedule to the Act of 1997 or Section 57 of the Act of 1992 or the said Section 57 as applied to Seanad elections by Section 25 of the Seanad Electoral University Members Act 1937 ii Any payment service or facility provided to a person out of public funds or money provided by an institution of the European Communities or other intergovernmental organisation to which the State is a party whether pursuant to this Act the Oireachtas Allowances to Members Acts 1938 1996 the Ministerial and Parliamentary Offices Acts 1938 1996 the European Assembly Irish Representatives Act 1979 or otherwise by virtue of being a member of either House of the Oireachtas a holder of a qualifying office within the meaning of the Ministerial and Parliamentary Offices Acts 1938 1996 the holder of a position referred to in the Oireachtas Allowances to Members Amendment Act 1994 a representative in the European Parliament a political party a political group or any group of members in the Dáil the holder of an elective or other public office or a member of delegate to or representative in a body established by or under an agreement or arrangement to which the State is a party The contention advanced on behalf of the applicant in the High Court was in essence that these provisions made it clear that property goods or services provided for out of public funds including the free postage and telephone facilities secretarial services and office accommodation provided to members of the Oireachtas or MEPs were not to be taken into account in calculating the expenditure by them in an election campaign and determining whether the limitations imposed by the 1997 Act on such expenditure had been observed This it was argued resulted in gross inequality unfairness and invidious discrimination between such candidates and other candidates The legislative provisions governing the payment of allowances and expenses to members of the Oireachtas and members of the European Parliament begin with the Oireachtas Allowances to Members Act 1938 The long title of the Act which is still the Principal Act in this particular code described it as an Act to make provision for the payment of allowances to members of each House of the Oireachtas in respect of their duties as public representatives and for the grant to such members of free travelling facilities in connection with those duties The Principal Act was amended by the Oireachtas Allowances to Members Act 1962 S 2 of which in particular provided that the following facilities shall subject to such exceptions restrictions and conditions as may be provided for by regulations be granted to a member of Dáil Eireann or Seanad Eireann a free telephone calls from Leinster House b free postal facilities arising out of his parliamentary duties Section 3 of the Oireachtas Miscellaneous Provisions and Ministerial and Parliamentary Offices Amendment Act 1996 provided for the payment of a telephone allowance in respect of telephone calls otherwise than from Leinster House arising from the member s parliamentary duties The same Act also provided for the provision of secretarial facilities solely in connection with the member s parliamentary duties It should be noted that S 33 of the Ministerial Parliamentary and Judicial Offices and Oireachtas Members Miscellaneous Provisions Act 2001 provided for the deletion of the words arising out of the member s parliamentary duties in S 2 b of the 1962 Act The High Court and this court were also referred to the Guidelines for the General Election to the

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