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  • that is correct in law whether as a consequence there is a constitutional right which has been infringed If the Appellant is wrong in his first contention as to the combined effect of the relevant Acts the second part of the issue does not arise If he is correct in his basic premise as to the effects of the Acts then an issue arises as to whether being denied access to the monies and assets which the High Court in separate proceedings had ruled were the proceeds of crime for the purpose of paying the relevant tax on lodging his notice of appeal against assessment constituted a breach of constitutional rights It would not automatically follow that because he had been denied access to such monies and assets the subject of such a High Court Order that there was necessarily a breach of his constitutional rights That would be a separate matter to be considered and determined by the Court if it arose It seems to me abundantly clear that if the Appellant fails to establish that the provision in question have the effect of depriving him of access to his assets to the extent alleged then the preliminary premise fails and the question as to the constitutionality of the Acts does not arise That premise is the first and essential concrete issue in the case As has already been seen the judgment of the High Court interpreted Section 2 3 a and Section 6 of the Proceeds of Crime Act 1996 one of the Acts whose provisions are impugned as providing to the Appellant a means of access to his monies and assets Hence the first and basic premise of the Appellant s case was dismissed on the merits of the argument advanced Having so concluded no other issue arose in relation to the Appellant s defence to the Plaintiff s claim and in particular the basis on which he could raise a question as to the constitutionality of the impugned Acts was not established In substance the learned High Court judge decided the issue and the Appellant was not limited or in any way affected by any supposed lack of locus standi in making his arguments Of course if the learned High Court judge had held that the provisions in question had the effect of denying him access to his assets then at least hypothetically other issues could have arisen such as identification of the precise right alleged to have been infringed and whether in fact it had been so infringed But no such issues could arise once the substantive arguments concerning the Appellant s basic premise had been dismissed It was only after making his substantive finding that the learned High Court judge went on to conclude that he accepted the Respondent s submission that the Defendant had no locus standi and in this regard he expressly relied upon the decision of McCracken J in Coughlan v Ireland and the Attorney General and Others cited above which he stated had been opened to him by counsel for the Respondent In this Court also counsel for the Respondent relied upon that decision of McCracken J as authority for the proposition that the Appellant in this case should be considered to have no locus standi In my view to interpret the judgment of McCracken J in that case as supporting such a proposition is to misunderstand its content and effect Coughlan v Ireland was a case in which the Plaintiff challenged the constitutionality of Section 65 of the Courts of Justice Act 1936 on the grounds that he could not afford to pay the sum of 40 for the purpose of lodging his notice of appeal in respect of the relevant orders made in the High Court in those proceedings I do not think it is necessary to go into the details of that case except to refer to some salient points At page 2 of his judgment McCracken J noted as a preliminary point the Defendants claim that the Plaintiff has no locus standi as he was in fact in a position to make the payments at the relevant time His conclusion on that point is to be found at page four where he states accordingly I find that the Plaintiff does have locus standi to bring these proceedings in that he would appear to have been impecunious at the relevant time On the merits of the Plaintiff s claim he went on to find that legal aid was available to the Plaintiff and if he satisfied the relevant criteria he would have had access to the Courts He concluded his judgment in the following terms In my view as the means were provided by the State whereby he could under controlled circumstances have access to the Courts I do not think he is entitled either to challenge the constitutionality of the section of the Courts of Justice Act I am not satisfied that he has in fact been deprived of access to the Courts in those circumstances On any view I do not consider that the latter passage can be interpreted as denying locus standi to the Plaintiff in that case The phrase I do not think that he is entitled to challenge either the constitutionality of the section is not open to the interpretation even in its own particular context that he was denying locus standi to the Plaintiff To my mind McCracken J was simply expressing a view that the Plaintiff on the merits had failed to establish his preliminary premise on which his ground for raising an issue as to the constitutionality of the section was based In the instant case although the learned High Court judge headed the part of his judgment dealing with the merits of the Appellant s arguments with the words locus standi and concluded after dealing with the substance of the arguments of the Appellant with a finding that he had no locus standi I am of the view that the substantive meaning and effect of the judgment of the High Court in this case is that the Appellant was accorded locus standi to the extent necessary so that his argument on the preliminary premise was fully adjudicated upon The substance and effect of the learned High Court Judges judgment is essentially the same as that of McCracken J in Coughlan v Ireland namely that having failed in his basic premise any question concerning the constitutionality of the Acts no longer arose For these reasons I do not consider that the Appellant s contentions regarding his locus standi in the High Court are grounds for allowing the appeal I will now turn to the substantive issue as to whether the learned High Court Judge was correct in ruling that the combined effect of the Acts in question was not such as to deprive the Appellant of access to the monies and assets the subject of the freezing order in the manner contended S econd issue Access to assets the subject of the freezing order The Appellant in an affidavit sworn by him on the 25th February 1999 in these proceedings averred at paragraph 4 for the purpose of setting out the level of his indebtedness to the Revenue Commissioners as follows I say that I have certain income from my activities as a street trader for the years in question as detailed in Mr Shine s submissions but it was nothing like the kind of estimated income underlining the assessments made by the Bureau in this case Mr Shine is the Appellant s accountant who submitted returns of income tax for him to the Revenue Commissions in respect of the years with which the assessments were concerned As the learned High Court judge correctly points out in his judgment it was incumbent on the Appellant when making a return to disclose all his income and in the present case none is disclosed as being the proceeds of crime The assessments to tax concerning the Appellant were made for the years of assessment 1988 1989 to 1995 1996 inclusive Subsequent to the issuing of those assessments by the inspector the Appellant within the 30 days limit for an appeal against those assessments submitted his own tax returns through his accountant for those years disclosing a total gross income over those years of slightly in excess of 200 000 253 947 62 On foot of those returns the Appellant s accountant assessed his income tax liability for those years as amounting to a figure in the region of 106 000 134 592 24 All of this income is stated to be income from the Appellants activities as a street trader As appears from the learned High Court judge s judgment the order pursuant to Section 2 1 of the 1996 Act restraining the Appellant from having access to the monies mentioned in that order had been made because the court was satisfied that the said monies were the proceeds of crime involving dealing in illicit drugs On the facts before the High Court I am satisfied that the learned High Court judge was correct in concluding that as far as the Appellant himself is concerned all his income over the years concerned derived from the lawful activity of street trading and not from dealing in illicit drugs That is the position which he has adopted in these proceedings It is not contested that Section 2 3 of the 1996 Act entitles a person who has been the subject of an order under to Section 2 1 to apply to the court to discharge or vary the order if it is shown to the satisfaction of the court that the property concerned or a part of it is not property which is directly or indirectly the proceeds of crime within the meaning of the Act It was open to the Appellant at any time after the making of the order pursuant to Section 2 1 on 29th May 1997 to apply to the court to have the said monies released to him on the grounds that they were not the proceeds of crime Before the High Court it was suggested by Counsel that the Appellant did not have a licence to engage in street trading which might constitute a bar to a successful application pursuant to Section 2 3 Although this argument was not pursued in the appeal I am satisfied that the learned High Court judge was correct in his conclusion that such a factor of which there appears to have been no actual evidence would not have been a bar to the making of such an application in order to seek access to the monies which were the subject of the Section 2 1 Order Nor do I consider that the time constraints complained of by the Appellant were such as to unduly restrict his right to seek access to his monies pursuant to Section 2 3 in the circumstances of this case As previously noted the Section 2 1 Order was made on the 29th May 1997 and the Appellant knew or must have known at all times that he had tax liabilities to the Revenue Commissioners in respect of his earnings over the years concerned He was under a duty to discharge those liabilities and to be in a position to discharge those liabilities He could have made the appropriate Section 2 3 application at any time from the making of the Section 2 1 Order In addition he had 30 days from the raising of the assessments on 25th August 1997 to appeal the inspectors assessments He could have made such an application promptly in that period The requirement that he pay the tax due on foot of his own income tax return was not something which was sprung upon him at the last moment or in the last few days of the period for appealing by the tax inspector That requirement is a statutory one of long standing in the appeals procedure concerning assessments to tax Furthermore I am satisfied that the Appellant had a reasonable opportunity to seek access to the monies in question pursuant to an application under section 2 3 for the purpose of prosecuting his appeal against the inspectors assessments to tax There are in any case two other factors to be taken into account Firstly the Appellant having appealed to the Appeals Commissioners against the refusal of the inspector to accept his appeal was informed that the hearing of his appeal against such refusal would take place on the 25th June 1998 Again he had a very long period during which he could have sought access to the monies in question pursuant to section 2 3 but he failed to avail of that procedure Had he successfully done so he would have been in a position to avail of that appeal procedure to ask the Appeals Commissioners to exercise their discretion and overturn the refusal on the grounds that he was then in a position to pay the necessary income tax due He did not do so and did not turn up for his appeal As a consequence it was treated as having gone by default Secondly section 933 7 a contains provisions for a late notice of appeal within 12 months of the date of the Notice of Assessment where the taxpayer concerned for reasonable cause was prevented from giving notice of appeal within the time limited If the Appellant had moved with reasonable diligence to make an application pursuant to Section 2 3 there is no reason to conclude that it would not have been dealt with so as to allow him to appeal within the relevant period But if he had made such an application in a reasonably diligent fashion and for reasons outside his control there had been some delay which prevented a proper lodging of his appeal in time it is clear that he would have had open to him the option of seeking to lodge his appeal after the time formally specified In the circumstances I am satisfied that the combined effect of the statutory provisions concerned was not such as to deny him access to his funds so as to prevent him exercising his right of appeal under the Taxes Consolidation Act 1997 and on this ground alone he must fail His contention that he should not have been put in a position to have to resort to a Section 2 3 application in order to seek access to the monies in question is not well founded As already stated that order was made because the High Court was satisfied that it represented the proceeds of unlawful dealing in illicit drugs He was in the best position to demonstrate where the monies had come from He had the option to demonstrate as he contends that the monies are not the proceeds of crime but he did not exercise it If that left him in the position of not being able to use the monies in question for other purposes it was of his own making At all times the onus is on the taxpayer to be in a position to fulfil his statutory obligations and to take such steps as he may consider it necessary or appropriate to do so As regards Section 6 of the 1996 Act pursuant to which the High Court may permit an order under Section 2 1 to be varied At anytime if it considers it essential to do so for the purpose of enabling the person concerned to discharge the reasonable living and other necessary expenses incurred or to be incurred I am of the view that this was also an application which could have been made by the Appellant for access to the monies in question for the purposes of discharging his admitted liabilities to income tax This is on the assumption that the Appellant had no other means of paying the income tax admitted to be due which is the basis on which he has made his case and appears to have been accepted by the Respondent at least for the purpose of these proceedings Section 6 falls to be considered in a somewhat different context The Appellant was restricted by an order of the High Court from dealing with or diminishing the assets in question because it had been satisfied that they were the proceeds of crime That order was obtained on the application of an agency of the State At the same time he is under a statutory obligation to discharge his tax liabilities to the State and for the purpose of exercising his statutory right of appeal he was required by statute to pay the amount of tax which he had admitted to be due This section refers to reasonable living and other necessary expenses Self evidently necessary expenses refers to matters other than reasonable living expenses Although the phrase necessary expenses is somewhat ambiguous it clearly must include in the context of this case monies due and payable to the State pursuant to a statutory obligation Assuming that the Appellant was unable or failed to satisfy the court under a Section 2 3 application that the monies in question were not the proceeds of crime there is no reason why he should not have concurrently with the Section 2 3 application or as an alternative sought an order under Section 6 of the Act Also having regard to the time factors already mentioned in relation to a possible section 2 3 application the Appellant must be considered to have had ample opportunity to pursue the procedure laid down in section 6 Having had sufficient opportunity to pursue the remedies available to him under section 2 3 and or section 6 of the 1996 Act it cannot be said that the combined effect of the impugned provisions was to deprive him of access to his monies and assets in the manner alleged by the Appellant The Appellant having failed to establish that the statutory provisions in question restricted him from having access to the monies and assets in question for the purpose of prosecuting his appeal before the Appeals Commissioners no further issue constitutional or otherwise arises and the appeal should be dismissed THE SUPREME COURT Record No 189 00 Keane C J Denham J Murphy J Murray J Hardiman J BETWEEN THE CRIMINAL ASSETS BUREAU Plaintiff Respondent AND JOHN KELLY Defendant Appellant Judgment delivered the 11th day of October 2002 by Murray J In these proceedings the Plaintiff Respondent hereafter the Respondent has obtained summary judgment against the Defendant Appellant hereafter the Appellant for the sum of 378 522 76 480 624 76 being income tax and interest due by him on foot of certain assessments for income tax in respect of various years which were claimed to have become final and conclusive In the proceedings before the High Court it was common case that the Respondent had established all the necessary matters entitling it to a judgment for the said amount subject to the determination of two issues of law raised by the Appellant The first concerns the interpretation of section 957 2 a in conjunction with section 922 of the Taxes Consolidation Act 1997 The second concerns a question as to whether the combined effect of certain provisions of the Criminal Assets Bureau Act 1996 the Proceeds of Crime Act 1996 and the Taxes Consolidations Act 1997 deprived the Appellant of access to certain monies and assets which were the subject of a freezing order pursuant to Section 2 1 of the Proceeds of Crime Act 1996 for the purpose of paying an amount of income tax which was a pre condition to the Appellant s right of appeal against the aforementioned assessments In turn it was contended that in being prevented access to those monies for that purpose the Appellant was prevented from pursuing an appeal against those assessments in consequence of which his constitutional rights were breached The learned High Court judge decided both questions in favour of the Respondents and ordered that judgment be entered in favour of the Respondent against the Appellant for the amount claimed The Appellant has appealed against the rulings on these two questions of law First issue Section 957 2 a in conjunction with section 922 This question can be dealt with briefly since the Appellant although he did not abandon his appeal on this point did not actively pursue it The point in issue was whether the assessments to income tax made in respect of the Appellant could be considered as having being made pursuant to Section 922 of the Taxes Consolidation Act 1997 a necessary precondition for the application of Section 957 2 a governing the appeal procedures to be followed by the Appellant or whether the assessments made must be deemed to have been made pursuant to Section 58 of that Act Counsel for the Appellant acknowledged that this question was governed by the decision of this court in the Criminal Assets Bureau v Thomas McDonnell the Supreme Court unreported 20th December 2000 in my judgment and that of Geoghegan J In that case the court in addressing the very same question decided that as regards assessments of the nature in issue in this case they must be considered as assessments pursuant to Section 922 of the 1997 Act and accordingly Section 957 2 a applied to taxpayers so assessed Moreover the decision of O Sullivan J on this question in this case was cited with approval in those judgments Since the decision of the court in that case clearly applies to the position of the Appellant in this case this ground of appeal should be dismissed Background The issue concerning a right of access to his own monies to enable him to appeal arose in the following context In May 1997 in distinct proceedings brought by Michael F Murphy against the Appellant an order of the High Court was made pursuant to section 2 1 of the Proceeds of Crime Act 1996 prohibiting the Appellant from disposing or otherwise dealing with or diminishing the value of a dwelling house in Dublin a motorcar owned by him and monies totalling 88 465 25 112 327 70 standing to his credit in two building societies on the grounds that those assets were the proceeds of crime Independently of those proceedings the Criminal Assets Bureau raised the aforementioned tax assessments for certain years in respect of the Appellant as a tax on profits of unlawful activities referred to in section 58 of the Taxes Consolidation Act 1997 The Appellant sought to appeal against those assessments having after assessment submitted tax returns for amounts less than those assessed The appeal was refused on the grounds that the amount of tax admitted to be due on foot of those returns had not been paid with the appeal Section 957 2 a of the Taxes Consolidation Act 1997 provides that no appeal shall lie against such an assessment unless inter alia the taxpayer pays an amount of tax which is not less than the amount of tax which would be payable on foot of the his own tax returns The Appellant responded through his accountant that he was unable to pay the amount of tax admitted to be due because of the order pursuant to section 2 1 of the Proceeds of Crime Act 1996 freezing the monies standing to his account The failure of the Appellant to lodge a valid appeal against the assessment to tax led to the assessment becoming conclusive and the initiation of these proceedings for the recovery of the amount due In these proceedings pursuant to order of the High Court made on the 26th February 1999 the Appellant delivered pleadings described as points of claim setting out the grounds upon which he contested the entitlement of the Respondent to proceed to judgment on foot of the summary summons In point 5 of that pleading the Appellant claimed that the Criminal Assets Bureau Act 1996 and the Proceeds of Crime Act 1996 taken together with section 933 1 b and 957 2 a of the Taxes Consolidation Act 1997 were in there effect and operation unconstitutional and in particular in violation of the Defendant s rights under Article 34 1 37 1 40 1 2 and 3 and Article 4 of Bunreacht Ná hÉireann because the effect has been to allow the Plaintiff to deny the Defendants right of access to the appeals procedure and the court through its action in depriving him of access to his assets The sequence of events giving rise to the situation of which the Appellant complains is set out with great clarity in the judgment of O Sullivan J in these proceedings and are as follows On the 29th May 1997 in separate proceedings brought by Michael F Murphy against the Defendant in the matter of The Proceeds of Crime Act 1996 I made an Order pursuant to Section 2 of that Act prohibiting the Defendant from disposing or otherwise dealing with or diminishing the value of freehold property in Country Dublin a Ford Fiesta motorcar and substantial amounts of money standing to his credit in two building societies On the 5th August 1997 the Plaintiff issued assessments for tax and surcharge for late submission of returns for the tax years ended 5th April 1989 to 5th April 1996 inclusive and these were received by the Defendant on the 7th August The statutory thirty day time limit within which the Defendant was entitled to appeal these assessments expired accordingly on 4th September 1997 On the 14th August 1997 the Defendant s then Solicitor wrote to the Plaintiff indicating an intention to appeal On the 25th August 1997 the Plaintiff replied to the Defendant s Solicitor enclosing copy of the same date of their letter to the Defendant pointing out in effect that no appeal could be made unless a return was made by the Defendant accompanied by payment of the amount of tax admitted due and that in default of compliance the assessments would become final and conclusive within the relevant statutory time limits By letter of 2nd September 1997 the Defendant s accountant wrote to the Plaintiff appealing the assessment enclosing returns of income for each of the relevant years which acknowledged total income tax liability of 106 668 98 In that letter the Defendant s accountant stated Your office is presently holding monies on my client which have been used to remit his tax liability as per returns Effectively unless you allow my client to use above monies as payment of his tax liability this appeal will be invalid Please let me know what course of action you propose to take By letter of the 9th September 1997 the Plaintiff replied acknowledging receipt of the accountant s letter noting that the Plaintiff did not hold any money of the Defendant pointing out that money was held pursuant to an order under The Proceeds of Crime Act 1996 and that a remedy might be available to him under Section 6 of the Act The letter further pointed out that a valid appeal must be accompanied by the admitted amount due submitted within thirty days of the notice of assessment and also pointing out that statutory provisions existed for admission of a late appeal It concluded by stating that no valid appeal had been lodged and that the assessments have now become final and conclusive and that arrangements were being made for service of demands on the Defendant By letter of the 19th September 1997 the Defendant s accountant appealed against the refusal to accept his appeal pursuant to the relevant statutory provisions on the grounds that their refusal to accept the Defendant s notice of appeal dated 2nd September 1997 having regard to the particular circumstances of this client is contrary to law By letter of the 22nd September 1997 the Plaintiff acknowledged this letter and pointed out that any relevant application should be addressed to the offices of the Appeal Commissioners This letter was in turn acknowledged by the Defendant s accountant by letter of 22nd September 1997 By letter of the 27th April 1988 the Appeal Commissioners advised the Appellant and Plaintiff as respondent of the date time and place of the hearing being the 25th June 1998 On that date there was no attendance by or on behalf of the Appellant the Defendant and by letter of 3rd July 1998 the Plaintiff wrote to the Defendant pointing out to him that as there was not attendance by him or on his behalf his appeal against the refusal of the inspector to admit his appeal is now gone by default On the 13th of October 1998 these proceedings were commenced by the issuing of a summary summons out of the Central Office of the High Court The Judgment of the High Court In declining to accede to the submissions of Counsel for the Appellant in the High Court the learned High Court judge concluded that the Appellant could have at any time between the 29th May 1997 the date of the section 2 1 order and the institution of the present proceedings on the 13th October 1998 applied for a discharge of that order Accordingly he held that it was the failure of the Plaintiff to apply to have that order suspended that resulted in his not having access to funds for the purpose of making a valid appeal against the assessments This conclusion was reached on the basis that the position adopted by the Appellant in the High Court was to all intents and purposes that the monies in question were not the proceeds of illegal activity on his part The learned High Court Judge then went on to hold that even if the monies of the Appellants were treated as the proceeds of crime it is still open to him to make an application under section 6 of the Proceeds of Crime Act 1996 to ask the court to allow the said money to be paid out as necessary expenses within the meaning of that section On that basis the learned High Court judge concluded that the inability of the Appellant to avail of the appeal procedures pursuant to Section 957 2 a was attributable to his own failure to apply for an order suspending the freezing order or for an order paying out the monies pursuant to Section 6 of the aforesaid Act Accordingly the learned High Court judge rejected the argument that the combined effect of the impugned Acts was to deprive him of a right of appeal There was to be found within the relevant statute the avenues by which he could have had access to the monies the subject of a freezing order for the purpose of enabling his appeal against the assessment to tax proceedings It was only after having so found that the learned trial judge went on to express the view that the Appellant had no locus standi to challenge the validity of the impugned sections of the Statutes referred to For this view he cited the decision of McCracken J in Coughlan v Ireland and the Attorney General and Others the High Court unreported 12th July 1995 Submission of the Appellant On this second issue the Appellant first of all appeals on the ground that the learned High Court Judge erred in holding that he had no locus standi to challenge the constitutionality of the impugned statutory provisions He seeks an order remitting this matter to the High Court for adjudication upon the constitutional validity of the said provisions As regards the learned trial judge s finding that the Applicant could have applied to the High Court under Section 2 3 of the 1996 Order seeking to discharge or vary it it was submitted that the learned High Court judge failed to have regard to the short period of time within which it was open to the Appellant to make such an application after the notification of the assessments for income tax to the Appellant and the last day for the filing of an appeal against the assessment An application under Section 2 3 would have had to be made in the context of the tight 30 day deadline within which tax returns had to be filed the income tax admitted to be due paid and the notice of appeal lodged The learned trial judge also erred in concluding that the onus was on the Appellant to make an application to the court when it was open to the Criminal Assets Bureau to apply to have the order discharged in order to facilitate the release of funds to the Defendant which the Criminal Assets Bureau had itself assessed to tax It was also submitted that it is inconsistent with the raising of assessments of the type raised by the Respondent in these proceedings that a person in the position of the Appellant should be required to demonstrate to a Court that the property did not represent the proceeds of crime so as to avail himself of the Section 2 3 remedy The Appellant further contended that the learned trial judge erred in holding that he could alternatively have availed himself of an application pursuant to section 6 of the Proceeds of Crime Act 1996 whereby the court may permit access to funds for the purpose of enabling the person the subject of such an order to discharge reasonable living and other necessary expenses This provision should not be interpreted as encompassing tax liabilities If it had the section would have expressly said so In any event such an interpretation of the section would not have been immediately obvious to any legal advisor and any such application would have to be made within the short time limit available under the 1997 Act for appealing against an assessment for income tax On the facts of this case the Plaintiff was informed on the 25th August 1997 some nine days before the 30 day time limit expired that his appeal would not be accepted unless the returns were submitted and tax paid Submissions of the Respondent On behalf of the Respondents it was submitted that the assessments to tax were raised on 5th August 1997 and the Appellant was at all material times aware that in order to appeal against such assessments he was required by statute to deliver a notice of his intention to appeal make returns of the income which he claimed he had earned during the relevant periods and pay the amount of tax and interest due by reference to those returns He failed to pay the sum of income tax due on foot of his own returns within the time for appeal Accordingly the inspector properly refused his notice of appeal against the assessment The Appellant appealed against that refusal but failed to proceed with the appeal The Appellant had failed to avail himself of the remedy pursuant to Section 2 3 whereby he could have sought to set aside the order made pursuant to Section 2 on the grounds that the monies lodged to his credit in the building societies were not the proceeds of crime Alternatively he could have applied to the court pursuant to Section 6 of the 1996 for the payment out of the necessary monies as constituting necessary expenses within the meaning of that section Having regard to the procedures which were available to the Appellant pursuant to Section 2 3 and or Section 6 of the 1996 Act he is incorrect in his contention that the combined effect of the relevant statutory provisions was to deprive him of access to the monies in question The locus standi issue It seems to me that a misconception has arisen concerning the notion of locus standi in this case In my view the Appellant clearly had

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  • absolve him from the duty of so doing The main issue in this case is how much of the work carried on by a mining company can be said to constitute mining operations within the meaning of the Act Is it the case that only that which occurs below ground constitutes mining operations or does the definition extend to include the process undertaken in relation to the raw materials extracted from the mine At what point can it be said that the mining operations cease Two propositions can be advanced without dispute First the extraction of minerals from the earth and the bringing of such materials to the surface including all such works necessary to facilitate this process such as the sinking of shafts or the building of tunnels forms part of what may be termed mining operations Secondly processes which subject the raw material to change in their physical or chemical properties commercial characteristics or other characteristics such that the end product has a utility marketability and quality different from that of the original raw product constitute manufacturing It is inconceivable that any definition of mining operations could be given which would not include the underground mining activities in which Tara have engaged As those activities form a substantial part of the business of the tax payer the first question which arises is whether Tara derives any income from those operations At first sight it may seem surprising that this would not be so Ordinarily one would expect a substantial expenditure by a tax payer to result in an income to him However as Tara argued in the present case it is the final link in an integrated business and not the original or intermediate steps which provides the income To suggest that any earlier activity produces an income would in fact involve some concept of apportionment being deemed to have taken place This proposition is well illustrated by s 50 of the Finance Act 1980 which is later in date but in pari materia with the legislation under consideration here Subsection 2 of s 50 aforesaid provides as follows Where a company carries on a trade which consists of or includes the manufacture of goods and in the course of the trade carries on any mining operations within the meaning of subsection 1 a from which it obtains any scheduled mineral mineral compound or mineral substance of the kind referred to in that subsection and any such mineral compound or substance is not sold by the company in the course of the trade but forms the whole or part of the materials used in the manufacture of such goods or is to any extent incorporated in the goods in the course of their manufacture then part of the income which apart from this subsection would be income from the sale of goods for the purposes of section 41 shall be deemed for the purposes of subsection 1 to be income from such mining operations and that part shall for the purposes of that subsection be such amount as appears to the inspector or on appeal to the Appeal Commissioners to be just and reasonable In my opinion no part of the income of Tara is on the findings of the Appeal Commissioners derived from the mining operations of Tara insofar as those operations consist of the underground activities How does one determine whether the over ground activities constitute mining operations Attention was drawn to the decision of the Exchequer Court of Canada in Marbridge Mines Ltd v MNR Ltd supra The judgment of Gibson J contains a passage on which Tara understandably place some reliance namely As I understand it mining ends with the bringing of the mineral ore to the ground surface and that before that terminal point three stages of physical operation have been gone through namely 1 Exploration 2 development and 3 extraction mining Then following the bringing of the minerals to the surface the physical operations that takes place is treatment of the ore And again treatment consists of three stages of physical operation namely 1 milling which includes the rough primary grinding 2 smelting and 3 refining Superficially this extract would appear to be helpful However it was made in the context that the appellant tax payer was contending that he had discovered an ore body on a claim adjacent to one on which he was already operating a mine so that the working of the new claim was a separate independent mine in respect of which he was entitled to tax exemption The issue was whether there was a mine not whether there were mining operations What the Court decided was that the treatment of the ore after it had been brought to the surface was irrelevant in determining whether or not the operation of the claim constituted a mine Neither the Appeal Commissioners nor the learned High Court judge accepted or concluded that mining operations necessarily terminated when the mineral ore was brought to the surface In my view they would have been incorrect to have reached any other conclusion Several Australian authorities were cited in support of the proposition that activities carried out above ground are not per se and without more excluded from the description mining operations Federal Commission of Taxation v Henderson 1943 68 C L R 29 North Australian Cement Ltd v Federal Commission of Taxation 89 A T C 4765 and Federal Commission of Taxation v ICI Australia Ltd 1971 1972 127 C L R 529 In Federal Commission of Taxation v Henderson 1943 68 C L R 29 the taxpayer was an assayer and metallurgist who had discovered an improved process for recovering gold from slum dumps material excavated from mines and lying on the surface of the ground from which the residual gold could be extracted only by chemical processes The taxpayer sampled and assayed certain dumps and a syndicate of which he was a member acquired the right to enter upon and treat the slum for the recovery of gold The Court of first instance held that the company in treating the dumps was a mining company carrying on mining operations for gold within the meaning of s 78 1 d of the Income Tax Assessment Act 1936 1938 and that Henderson was therefore entitled to a deduction in respect of the calls paid by him on his contributing shares in the company The High Court of Australia dismissed the appeal and having regard to expert evidence Latham C J stated at p 44 that It may be conceded that soil or minerals severed from the freehold are chattels and that the primary meaning of the word mine is a subterranean excavation for the purpose of getting minerals But as this case shows mine is not a definite term and it is used in other than its primary sense The Mines Act 1928 of Victoria to which appellant s counsel referred may be used to show that the word mine and the word mining used adjectivally are not limited either to excavation or to subterranean excavation The words mining operations and that in the context of relief from taxation were considered in a number of Australian decisions to which the Court was referred and which included Federal Commissioner of Taxation v Broken Hill Proprietary Co 1967 1969 120 C L R 241 and more particularly Federal Commission of Taxation v Northwest Iron Co Ltd Unreported Federal Court of Australia 27th March 1986 and Reynolds Australia Alumina Ltd v Federal Commissioner of Taxation Unreported Federal Court of Australia 31st March 1987 The facts of these cases are technical and complicated The law was as Lockhart J said in the North West Iron case labyrinthine Moreover there are dangers in every case in extracting authorities from jurisdictions without a comprehensive knowledge of the legal system and jurisprudence from which they are derived It is understandable that the Appeal Commissioners were reluctant to place great reliance on those authorities On the other hand it would be unwise to ignore them In Reynolds Australia Alumina Ltd v Federal Commissioner of Taxation Unr eported Federal Court of Australia 31st March 1987 the Court upheld the taxpayer s claim to exemption from sales tax on an overland conveyor connecting the mine site and the refinery which the taxpayer asserted was used in the mining industry in carrying out mining operations or the treatment of the products of those operations under Item 14 1 of the First Schedule to the Sales Tax Exemptions and Classifications Act 1935 The bauxite was not subjected to any process while travelling on the conveyor it was used solely for transportation However the Court held that the transportation formed part of the treatment of the bauxite in the mining industry and thus Item 14 applied to exempt the applicants from liability to sales tax on the relevant machinery and apparatus The trial judge Beaumont J in Federal Commissioner of Taxation v Reynolds Australia Alumina Ltd 1 987 77 A L R 543 had deduced a number of general propositions from the authorities at p 549 i Because the object of a provision such as Item 14 1 is to encourage the production of minerals in Australia the exemption should be construed and applied liberally ii the notion of mining is a flexible rather than fixed one so that conceptually it is capable of accommodating technological change iii Mining operations means operations pertaining to mining and operations is a very wide expression For instance mining operations is wider than the working of a mining property iv The present question is one of fact and degree v In determining whether the exemption is applicable it is appropriate to have regard to practical and businesslike considerations and for this purpose to look at the matter in the context of the taxpayer s activities as a whole The decision of the Federal Court of Australia in Federal Commission of Taxation v North West Iron Co Ltd Unreported Federal Court of Australia 27th March 1986 is important not so much for the conclusion which it reached as for the reasoning by which it reached its conclusion on the interpretation of the words mining operation and that in a statutory context similar to the one under consideration in the present case Under the Australian Income Tax Assessment Act 1936 s 112 it was provided that Where a person in connection with the carrying on by him of mining operations upon a mining property in Australia has incurred expenditure of a capital nature on necessary plant and the amount ascertained in accordance with a section shall be an allowable deduction in respect of that expenditure The facts of the case were interesting A mining venture known as Savage River Mines extracted crude ore from a site on the Savage River in north western Tasmania near the town of Waratah On site they crushed and ground the ore separated the magnetic iron particles from undesirable matter by a wet process and then transported the ensuing concentrate in slurry solution by a pipe line to Port Latta in northern Tasmania some 85 kilometres away where the slurry was dewatered and the ore converted into pellets The issue in the case was whether the transportation of the slurry by pipeline from Waratah to Port Latta was a mining operation within the meaning of s 112 aforesaid so as to enable the cost of the construction of the pipeline to be claimed as an allowable deduction It was held that it was Alterations to and amendments of the Act of 1936 expressly restricted deductions in respect of transportation facilities to those operating wholly within the site of prescribed mining operations Notwithstanding the wide area involved in the extraction transportation and treatment of the ore it was held that the pipeline operated within such a site Clearly the pelletisation as described in the judgment was a complex manufacturing process The finely ground iron ore which was included in the slurry was dewatered coalesced with a binding agent and rolled into marble sized balls the pellets which were then transported by conveyor from the plant along a jetty for nearly 1 6 kilometres to ore carries moored nearby In Federal Commissioner of Taxation v Broken Hill Proprietary Co 1967 1969 120 C L R 241 the High Court of Australia had expressly found that pelletisation was not a manufacturing operation and in Federal Commissioner of Taxation v Utah Development Co 1976 76 A T C 4119 the Supreme Court of Victoria concluded that operations carried on in a plant by which coal which had been mined was processed or treated so as to transform it into metallurgic coking coal did not constitute a mining operation It may be asked how those conclusions could be reconciled with the decision in the North West Iron Co case The answer is of course that the nature and effect of the process is a matter of fact in each case In the course of his judgment in the North West Iron case Lockhar t J expressed his conclusions and implicitly gave guidance as follows What is plain from the cases is that it is a question of fact in each case whether the particular operations or processes are mining operations for the purposes of s 122 At paragraph 41 of his judgment he said The slurry is not a saleable commodity and it is not dewatered until it reaches Port Latta as part of the pelletisation process The only saleable commodity available from the Savage River development as a modern blast furnace fee was as it is today pellets Until pelletisation takes place the concentrates are of no use to anybody and the slurry in which they are contained is similarly of no use Only the pellets are useful Again in paragraph 43 the learned judge explained The object of the taxpayers activities is the production of pellets after the treatment of the ore essentially by work processes and the eventual removal of the water content from the slurry It is not the object of the taxpayers operations to produce fines The process of pelletisation is integral to the whole operations of the mining venture and essential to the development of the potential of the low grade ore of the Savage River site by means of tax payers technology The pipeline is essential to the end product It is not different in essence from a necessary conveyor line conveying material from one section to another within the mining complex The end product of the tax payers mining activities is the production of pellets In paragraph 44 he expresses his conclusions in the following terms Practical and businesslike considerations clearly lead to the conclusion that the whole of the relevant operations of the tax payer to the final stage where the pellets emerge are part of its mining operation Although at first sight it may seem somewhat incongruous that a pipeline extending for some 85 kilometres from the Savage River to Port Latta is part of the tax payers mining operations the apparent incongruity disappears when the role of pipeline is considered in the context of the tax payers activities as a whole The term mining operation does not admit of a precise definition Unquestionably it is an activity related to mining The expression is as the Australian authorities have pointed out of wide import It is not confined to underground activities or the mere extraction of mineral ores It may extend to overground operations and to the processing to some extent at any rate of the extracted ores The fact that the processing may be properly categorised as manufacturing does not preclude it being at the same time a mining operation In determining whether a particular activity is a mining operation consideration must be given to the nature of the activity and above all its relationship with the extraction process However these factors must be considered in the context of the object for which the mining activity and the business venture was commenced A fact which is important in every case and perhaps crucial in the present case is consideration of the object for which Tara was promoted What the findings of the Commissioners clearly demonstrate is that the activities of that mining company were not undertaken for the purpose of extracting mineral ores For that product there was no economic market The object and purpose of the company was to produce on the site of the mine concentrates for which there was a market albeit an overseas market In those circumstances and on the findings of fact made by the Appeal Commissioners a conclusion that the overground processing operations constituted mining operations was inescapable and a decision to the contrary on the findings of fact made would be unsustainable I am satisfied that the above ground activity of Tara is a mining operation and at the same time a process by which goods are manufactured within the meaning of s 54 of the Act of 1976 This overlap was anticipated by the Corporation Tax Act 1976 s 58 9 quoted above which provides A reduction in taxable income shall not be made under this section in respect of corporation tax payable on income from any mining operation In cases where an activity is exclusively a mining operation no question of export tax relief would arise On the other hand if the process under consideration was exclusively a manufacturing and not a mining operation the exception would have no application Clearly the subsection recognises that a process of manufacturing subsequent to the extraction of the underground minerals may at the same time constitute a mining operation for the purposes of the relevant legislation and that the legislation intended to exclude income derived from that activity so as to avoid a tax payer enjoying both export tax relief and capital allowances on his mining investment In my opinion the learned High Court judge was correct in the answer which he gave to the question posed by the Appeal Commissioners even though I am not in full agreement with the reasoning by which he reached that conclusion Accordingly I would dismiss the appeal and affirm the order of the learned High Court judge THE SUPREME COURT REVENUE Record No 147 01 DENHAM J MURPHY J MURRAY J BETWEEN PATRICK O CONNELL INSPECTOR OF TAXES APPELLANT AND TARA MINES LIMITED RESPONDENT Judgment of Mr Justice Francis D Murphy delivered the 10th Day of October 2002 This is an appeal by Tara Mines Limited Tara from the judgment and order of the High Court Mr Justice R Murphy on the 4th April 2001 whereby for the reasons set out in that judgment the learned judge allowed the appeal brought by the Inspector of Taxes the Inspector from the determination by the Appeal Commissioners of certain assessments to corporation tax for the years ended 31st December 1978 to 31st December 1988 The issue in these proceedings can be stated simply as follows Did any part of the monies received by Tara during the relevant years aforesaid constitute income from any mining operations within the meaning of subsection 9 of section 58 of the Corporation Tax Act 1976 The facts and the legal framework within which that question arises are complex they are set out fully in the case stated by the Appeal Commissioners dated the 16th February 2000 but may be summarised as follows Tara extracts lead and zinc ores from the earth at its property situate near Navan County Meath These ores are then processed to produce finished products of zinc and lead concentrates The major constituents approximately 90 of the concentrates are sphalerite and galena Sphalerite is a naturally occurring substance containing zinc in the form of zinc sulphide Galena is a naturally occurring substance containing lead in the form of lead sulphite The company s ore body is set between 50 and 600 metres below the surface It dips gently towards the south west at 15 degrees and varies in thickness from 10 to 80 metres The current known area extent of the ore body is 1 300 metres in length and 900 metres in width On average the ore contains 8 zinc and 2 5 lead The commercial activities of Tara are carried out in two divisions which are known as the mining division and the processing division respectively The managers of these divisions Mr Pitkanen and Mr Pocock gave evidence before the Appeal Commissioners They explained that the work of the mining division includes a geology department which determines the location of the ore body a research department which investigates new mining methods and a mine operations department which carries out the underground operations and a mobile equipment department which has charge of the maintenance of all mobile equipment both under and over ground The process by which ores are extracted from the mine body were summarised in the findings of the Appeal Commissioners in the following terms i Mining commences with prospecting for valuable materials Diamond drilling is carried out above ground to establish the commercial viability of the ore body or an area of the ore body Underground diamond drilling is also carried out and the results of this drilling are provided to the Mining Engineering Department to enable them to plan the mining operation ii Once the extent of the ore body has been determined plans are drawn up setting out how access will be gained to each pocket of ore in the ore body Underground access tunnels are then blasted with explosives in order to reach the pockets of ore iii Following exploration and location of the ore body the mine is laid out in blocks for planning purposes The blocks are divided into stopes and pillars Stopes are areas from which ore is excavated leaving pillars iv Ore is dislodged from the earth s crust by blasting Blasting produces broken ore which consists of large boulders as well as finer material The boulders can be as large as 2 metres across v The broken ore resulting from the blasting is transferred to the underground crushing station where it is subjected to primary crushing After the ore is extracted the cavities formed are filled by piping in back fill This allows the adjoining pillars to be worked vi Following this primary crushing the crushed ore is transferred by conveyor belt to the coarse ore bin situated 320 metres below the surface vii The ore from the underground coarse ore bin is transported to the surface by way of skips operated by a hoist Each skip transports up to 16 tonnes of ore to the surface by conveyor belt At the surface the ore is again transported by conveyor belt to the surface storage bin or tepee At this point the responsibility of the mining division ends The Appeal Commissioners in their case stated then go on to deal with the work carried out by the processing division in the following terms i The coarse ore is then subjected to a highly sophisticated process which is carried out at the Company s on site milling plant The object of this process is to produce precisely calibrated lead and zinc concentrates suitable for sale to smelters in other European countries ii The operations beyond the tepee can be divided into sections comminution processing back fill preparation and product disposal Comminution and processing essentially involve the extraction of galena and sphalerite in concentrate form from the crushed ore The comminution and processing are carried out in the mill which had a capital cost on construction of approximately US 75m iii Comminution more particularly involves further dry crushing and wet grinding The ore is transported by conveyor to the first overground crusher which reduces the size of the ore from 200mm to 16mm From there it is conveyed to the grinding circuit which reduces it from 16mm rock to a fine size 0 1mm rock Water is added in the grinding process producing a slurry The whole process is very energy intensive and is controlled by computers to ensure maximum efficiency iv At this size as slurry and water it is suitable for the flotation process which separates out galena for lead and sphalerite for zinc For reasons of commercial and technical efficiency and efficacy galena is floated before sphalerite As the name implies the flotation process involves floating off of the lead and zinc bearing materials in the ore v The basis of the flotation process is the modification of the mineral surfaces using organic and inorganic chemicals Firstly a small precisely measured amount of organic and inorganic chemicals is introduced to the slurry These chemicals react with and change the surface characteristics of the lead mineral galena and it becomes hydrophobic water repellent Air is then passed through the slurry As an air bubble progresses upwards through the slurry the water repellent particles become attached to it and the bubble becomes coated with galena particles A floating agent is added so that when the bubbles reach the surface a stable froth is produced at the surface The accumulated bubbles with their minerals flow off the surface onto a concentrate launder vi After the process described above is carried out the rougher concentrate is pumped to the cleaning circuit where the flotation process is repeated three further times to increase the lead content of the final lead concentrate to a level acceptable for smelting vii The tailings from the lead rougher circuit now contain very little lead mineral but most of the original zinc minerals and waste rock This slurry is then conditioned with further organic and inorganic chemicals to make the zinc minerals hydrophobic After conditioning the zinc mineral sphalerite is floated as described for galena to produce rough zinc concentrate which is reground into a small ball mill prior to three stages of cleaning to produce a zinc flotation concentrate viii The zinc concentrate is further processed by acid leaching to reduce the magnesium oxide content of the zinc concentrate to a level acceptable to the smelters The concentrate is leached in four rubber lined vessels with sulphuric acid Magnesium goes into a solution as magnesium sulphate and calcium carbonate is dissolved and re precipitates as calcium sulphate After leaching the concentrate is processed in a reflotation plant which removes the calcium sulphate precipitates and upgrades the zinc concentrate to its final value typically containing 56 zinc ix Both concentrates are now in the form of dilute slurry and must be de watered sufficiently to facilitate handling and transport The flotation concentrate is pumped to a thickener the clear water overflow of which returns to the grinding circuit The thickened under flow is pumped to a surge tank and then to a ceramic filter which reduces the moisture content to an acceptable level Dried lead concentrate which contains approximately 6 moisture is conveyed to a 7 000 DMT capacity storage building on site from where it is transferred to rail wagons for transport to Dublin Port x Leached zinc concentrate is de watered in similar but larger equipment The thickened under flow flows by gravity to a surge tank to which filter aid is added and from there it is pumped to two or three disc filters Again the filter cake drops onto a conveyor that transports it to a concurrent oil fired rotary drum drier Dried zinc concentrate containing approximately 8 moisture is conveyed to a 20 000 DMT capacity storage building on site from where it is transferred to rail wagons for transport to Dublin Port xi Throughout the flotation process a high degree of control and monitoring is exercised to ensure maximum efficiency in the production of lead and zinc concentrates maximising the recovery of the appropriate minerals from the ore while using the minimum quantity of chemical reagents The principal control mechanism is a Courier 200 on stream analyser which is an on line X ray fluorescent spectrometer which analyses a sample of each of eighteen processed streams for percentage zinc percentage lead percentage iron and percentage solids once every fifteen minutes on a continuous basis This data together with grinding feed tonnage rates are processed by a computer which controls reagent dosage rates and other control variables xii Most of the material taken from the ground remains as waste material following the extraction of galena and sphalerite Much of this waste material is returned underground by the Processing Division either as sand back fill or cemented back fill The cemented back fill is prepared by mixing the waste with water and cement Although the back fill is produced by the Processing Division the back filling operation is carried out by the Mining Division The Appeal Commissioners found that the distinction or specialisation between the mining division and the processing division exists throughout the industry internationally and was also recognised in the organisation of university departments The Appeal Commissioners expressly found that The concentrates produced as the end product of the company are quite distinct from the ore A chemical change occurs in the processing stages in that the chemical compound on the surface of the mineral changes during the flotation process and in the leaching process carbonates are converted into sulphates which are subsequently removed The Appeal Commissioners having heard the evidence and having inspected the site concluded that the mining division or the process carried out by it was on a similar scale to the activity carried out by the processing division but neither one was subsidiary or ancillary to the other It was explained by Tara and accepted by the Commissioners that the cost of transporting the ore from the tepee for further processing off site would make further processing uneconomic The ore when processed as aforesaid was transported to Dublin Port and all of the concentrates produced by Tara during the relevant accounting periods were exported out of the State None of the lead or zinc ore was sold as such Having regard to the desperate need for industrialisation which might create wealth and give employment on the one hand and the highly speculative nature of exploring for and finding commercial quantities of metallic ores in this country it is not surprising that legislation was enacted granting valuable tax concessions to those who did succeed in engaging in the trade of working a mine The Finance Profits of Certain Mines Temporary Relief from Taxation Act 1956 provided that profits derived from the working of a qualifying mine as therein defined in relation to a trade which commenced after the 6th April 1956 should be exempt from tax for each of its first four years of trading and liable to tax on one half of its profits for the following four years Those provisions were effectively re enacted in the consolidating Income Tax Act 1967 and significantly extended by the Finance Act 1967 section 9 which provided for a twenty year tax exemption on the profits of the trade of operating a qualifying mine Similar exemptions were granted in respect of corporation profits tax Lengthening the exemption period was clearly attractive to the tax payer It had the advantage in addition of ensuring that any mine discovered would be developed in an orderly fashion and fully exploited A restricted exemption period might have resulted in high grade ores being extracted in the first instance to take advantage of the exemption and leaving ores of a lower grade which it might not be economic to extract under a less favourable tax regime Relief in the form of exemption from income tax and corporation profits tax was discontinued as from the year 1974 75 by the Finance Taxation of Profits of Certain Mines Act 1974 That Act provided in place of that relief a generous system of allowances in respect of development exploration and mine development expenditure At the same time as the mining industry was being encouraged by the tax reliefs aforesaid valuable concessions were made by the Finance Miscellaneous Provisions Act 1956 to encourage the export of goods by corporate tax payers who manufactured them The general scheme of the legislation was to deem the profits of the company to be such sum as bore the same relationship to the amount of the company s actual profits as the sums received from exports during a prescribed standard year bore to the sums received from such exports in the basis year After corporation profits tax and income tax on companies was replaced as and from the financial year 1974 by corporation tax the exports sales relief was governed by Part IV of the Corporation Tax Act 1976 and in particular s 58 thereof It may be helpful to set out in some detail the provisions of that section as follows 58 1 Where a company claims and proves as respects a relevant accounting period a that during the standard period in relation to the trade goods were in the course of the trade exported out of the State b that during the relevant accounting period goods were in the course of the trade exported out of the State and c that the total amount receivable from the sale of the last mentioned goods was in excess of the total amount in this section referred to as the standard amount receivable from the sale of the goods exported during the standard period corporation tax payable by the company for the relevant accounting period so far as it is referable to the income attributable to the said excess shall be reduced to nil and the corporation tax referable to the income attributable to the said excess shall be such an amount as bears to the relevant corporation tax as defined in subsection 10 the same proportion as the income attributable to the said excess bears to the total income brought intocharge to corporation tax 2 For the purposes of subsection 1 the income attributable to the said excess shall be taken to be such sum as bears to the amount of the company s income for the relevant accounting period which is attributable to the sale of goods whether exported or not the same proportion as the amount of the said excess bears to the total amount receivable by the company from such sale in the relevant accounting period 3 Where a company claims and proves as respects a relevant accounting period a that during the standard period in relation to the trade no goods were in the course of the trade exported out of the State or that the standard period is not applicable and b that during the relevant accounting period goods were in the course of the trade exported out of the State corporation tax payable by the company for the relevant accounting period so far as it is referable to the income from the sale of the goods so exported shall be reduced to nil and the corporation tax referable to the income from the sale of goods so exported shall be such an amount as bears to the relevant corporation tax the same proportion as the income from the sale of goods so exported bears to the total income brought into charge to corporation tax 4 For the purposes of subsection 3 the income from the sale of the goods so exported shall be taken to be such sum as bears to the amount of the company s income for the relevant accounting period which is attributable to the sale of goods whether exported or not the same proportion as the amount receivable in the relevant accounting period from the sale of goods exported bears to the total amount receivable by the company from the sale of goods whether exported or not in the relevant accounting period 5 In a case in which the preceding provisions of this section apply and the export out of the State in the relevant

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  • and also outside the actual jurisdiction of the particular District Court which had made the Care Order This was done by a system of co operation between the various Health Boards but if the strict approach advocated by the Appellant were to be followed even these placements would be called in question There was also already a high level of co operation between the Health Boards in this country and the child care authorities in the United Kingdom The level of such inter communication and co operation between the authorities here and in the proposed foreign jurisdiction was a matter which should and would be taken into account by the District Court in deciding whether to make an order which involved placing a child outside the State Conclusions The first question that arises is whether the Statute under consideration is to be given a restrictive or a purposive interpretation In Bank of Ireland v Purcell 1989 IR 327 this Court considered the proper approach to the construction of the Family Home Protection Act 1976 In his judgment Walsh J with whom Finlay C J Griffin J Hederman J and McCarthy J agreed stated at page 333 of the report The Family Home Protection Act 1976 is a remedial social statute enacted to protect the interest of the non owning spouse in the family home and to deal with and to seek to remedy the social problem which was created or could be created by the fact that the spouse who owned the family home could effectively put the other spouse out on the street by selling it or mortgaging it This was sometimes done out of vindictiveness and the other spouse had no redress Most frequently the victimised spouse was the wife She and her children could be left to fend for themselves so far as accommodation was concerned It was to secure the position of such a spouse that the Act of 1976 was passed This Statute is not to be construed as if it were a conveyancing statute As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done I have already very briefly set out the history of the enactment of the Child Care Act 1991 There can be no doubt that it is a remedial social statute and was seen to be such by all who were affected by its provisions Its social and remedial importance was accepted by all including this Court and more particularly the District Court who had for many years striven to operate the provisions of the Children Act 1908 in a way which made sense in the latter part of the twentieth century This is borne out in the decisions relied upon by Mr Durcan in the cases of DPP Houlihan v PG 1996 1 IR 28 1 and MF v Superintendent Ballymun Garda Station 1991 1 IR 281 I would therefore accept the submission of the Appellant that the construction of the 1991 Act as a whole should be approached in a purposive manner and that the Act as stated by Walsh J should be construed as widely and liberally as can fairly be done This does not of course imply that Section 47 can be looked at apart from its context in the general framework of the Act or that the widely drawn terms of the section mean that the District Court is simply at large in the orders it may make pursuant to the section Counsel for the Appellant is correct in laying stress on the fact that the child in question remains in the care of the Western Health Board pursuant to the Order of the District Court made on 22nd June 1997 Both the Health Board and the Court must at all times bear that fact in mind when making any proposals for the future care of the child Counsel for the Appellant is of course also correct in her submission that the District Court is not an appellate Court under the Statute that is clear from the terms of Section 28 It may well be that in his judgment the learned High Court judge did not intend his use of the word appellate to be understood in a strictly technical sense he may have used the word appellate as more or less an equivalent of supervisory a word which he correctly uses to describe the District Court s jurisdiction under the Act The word appellate is however used in error There is a scarcity of authority on the interpretation of Section 47 of the 1991 Act The only authority which was opened to this Court and I can trace no other is the judgment of McCracken J in the High Court in the case of Eastern Health Board v McDonnell 1999 1 IR 174 In that case case the learned High Court judge considered whether the District Court judge in question had the power under Section 47 to make wide ranging and detailed orders stretching to the future in regard to the Health Board s care plan for a child McCracken J accepted that the judge had such power In construing Section 47 McCracken J stated at page 184 of the report In my view Section 47 is an all embracing and wide ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court It should be noted that it is contained in part of the Act dealing with Children in the Care of Health Boards and is not qualified in any way I think the only reasonable interpretation of Section 47 is that it is intended to give the overall control of children in care to the District Court In his judgment McCracken J also stressed that both the Health Board under Section 3 of the Act and separately the District Court under Section 24 of the Act were enjoined to observe at all times the paramountcy of the welfare of the child However while local authorities and Health Boards must always have regard to the constitutional rights of the individual child and other interested parties as McCracken J points out at Pg 183 it is ultimately the function of the Courts to ensure that the guarantees given to an individual child are upheld While this authority is not of course binding on this Court it must be treated with considerable respect A very similar approach to the construction of Section 47 was taken by the learned trial judge in the judgment now under appeal I would in the main share the views of both learned judges as to the construction of the section A number of English authorities were mentioned by Counsel in the course of argument in this Court but it is clear that these are not of great assistance since the English Children Act 1980 does not contain any section comparable to Section 47 of the Act of 1991 The House of Lords in In Re M H Minors 1988 2 FLR 431 held that the statutory regime in respect of children in care in England did not admit judicial supervision or review of the merits of decisions made by local authorities in respect of children in their care whether such review was sought under the inherent or the statutory jurisdiction of the Court Interestingly this position in English law was found to be in breach of Articles 6 and 8 of the European Convention on Human Rights in the case of R v United Kingdom 1988 2 FLR 445 In this jurisdiction both children and parents enjoy constitutional rights The Oireachtas has rightly drawn attention to these rights in several sections of the 1991 Act It is ultimately for the Court and not for the Health Board to protect and enforce these constitutional rights in respect of children who are in care This can conveniently be done through the powers given in Section 47 of the Act In my view these powers include a power to direct or permit the placement of a child outside the State where the evidence before the Court indicates that such a placement is truly in the best interests of the child Such an order however should be made rarely and with considerable caution The child in question is as was stressed by Counsel for the Appellant in the care of and under the supervision of the Health Board and the Health Board will continue to have responsibility for his welfare The original Care Order was made by the District Court the supervisory role of that Court should to the greatest degree possible be maintained Before any order placing a child outside the State is made therefore the judge of the District Court to whom such an application has been made should carefully weigh all relevant factors These would include inter alia the following 1 The constitutional rights both of the child and of his or her parents 2 The parameters of the law regarding children in the jurisdiction in which it is proposed the child should live For example does the principle that the welfare of the child is paramount apply Are the normal principles of the comity of courts accepted Is it likely that the orders of the Irish court will be recognised and enforced 3 Is the country concerned a signatory to the Hague and or Luxembourg Conventions on Child Abduction 4 Is there already in place a system of co operation between the child care authorities in the proposed jurisdiction and the Health Boards in their role as child care authorities in this jurisdiction or can such a system be readily established 5 If the child is placed abroad will access to the child by the natural parent or parents be a practical possibility in terms both of distance and of expense 6 Is there a reasonable possibility of using either undertakings or mirror orders the use of which has been accepted by this Court in Hague Convention cases to make the position of the child and of the relevant Health Board more secure This list is by no means exhaustive All factors relevant to the welfare of the child and to the constitutional rights of all parties must form a crucial part of the consideration of the District Court when deciding whether or not to make the order proposed Relevant evidence should be provided to the District Court on the lines suggested above to enable the Court to make an informed decision as to which course is most conducive to the welfare of the child In the final event the District Court is bound by Section 24 of the Act of 1991 If after careful scrutiny the evidence before the Court shows that a placement outside the jurisdiction is in the best interests of the welfare of the child concerned the District Court has in my view power under Section 47 of the 1991 Act to permit or direct such a placement As far as question iii in the case stated is concerned it is clear that the District Court must also have the power to limit the period for which the child is so placed if in the opinion of the Court such a limitation is in the best interests of the child One further issue remains It was submitted in the Court below and again in this Court by Counsel for the Appellant Respondent that the child in question in the District Court proceedings having been born on the 19th day of May 1996 and being under seven years of age is affected by Section 40 of the Adoption Act 1952 The question therefore arises as to whether the power exercisable by the District Court under Section 47 of the 1992 Act may be negatived in the case of a child under the age of seven by the terms of Section 40 of the Adoption Act 1952 This section as originally passed by the Oireachtas read as follows 40 1 No person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permits such removal 2 Sub section 1 shall not apply to the removal of an illegitimate child under one year of age by or with the approval of the mother or if the mother is dead of a relative for the purpose of residing with the mother or a relative outside the State 3 Sub section 1 shall not apply to the removal of a child not being an illegitimate child under one year of age by or with the approval of a parent guardian or relative of the child 4 A person who contravenes this section shall be guilty of an offence and shall be liable on summary conviction to imprisonment for a term not exceeding twelve months or to a fine not exceeding 100 or to both This section is thus cited by Finnegan J in his judgment in the Court below Unfortunately it appears that the attention of the learned trial judge was not drawn to the decision of the High Court Finlay P as he then was in the State M D v The Minister for Foreign Affairs and Others 1979 IR 73 in which it was held that the provisions of sub section 2 and the words in parenthesis in sub section 3 of Section 40 of the Act of 1952 were an infringement of the personal right of the citizen to travel outside the State and accordingly should be declared invalid having regard to the provisions of the Constitution That case concerned a child of an unmarried couple where it was proposed with the consent of both parents that the child should travel to Nigeria and reside there However Section 40 sub section 1 and the substantive part of sub section 3 remain in force The learned trial judge dealt with the matter as follows Having regard to the definition of guardian in the Adoption Act 1952 Section 2 I am satisfied that a Health Board in respect of which a Care Order has been made is a guardian for the purposes of Section 40 3 of that Act and with the Health Board s approval a child other than an illegitimate child under one year of age may be removed out of the State In relation to a child in care to whom Section 40 2 applies while the Health Board has the like control as if it where his parent under the Child Care Act 1991 Section 18 3 a this has not the effect of displacing the mother for the purposes of approval the approval of the mother and not the Health Board is required in respect of such a child Clearly since sub section 2 has been held to be unconstitutional the learned judge s reference to an illegitimate child under one year of age and to a child in care to whom Section 40 2 applies are no longer applicable There remains the question as to whether the Health Board is a proper person to give approval under Section 40 3 At the time of the enactment of the Adoption Act 1952 which was the first legislation permitting legal adoption in this State a particular problem had arisen by which perspective adopters from other jurisdictions the majority from the United States were taking Irish infants abroad for the purpose of adoption In the main these were infants born to unmarried mothers who in the circumstances of the time felt themselves unable to care for their own children There was little or no enquiry or assessment as to the suitability of the families or environments to which these infants were being brought and no evidence as to whether their removal from the State was in the best interests of their welfare It was to cure that particular mischief that the Oireachtas enacted Section 40 It is of course many years since any such situation existed in this country although parallel situations have arisen in other jurisdictions It is clear that Section 40 is not addressed to the situation which applies in the instant case where the proposal is that the child be placed with relatives who have been fully assessed by the competent Child Care Authority in the United Kingdom and where the entire situation is being fully investigated by the District Court The powers of the Health Board in regard to a child who is the subject of a Care Order are set out in Section 18 3 of the Act of 1991 This sub section has been recited above The Health Board is stated to have the like control over the child as if it were his parent may decide the type of care to be provided for the child may give consent to any necessary medical or psychiatric examination and may give consent to the issue of a passport Guardian in relation to a child is defined in Section 3 of the Adoption Act 1952 as meaning a person appointed according to law to be guardian of his person by deed or will or by Order of a Court of competent jurisdiction Under the provisions of the subsequent 1991 Act the District Court is the Court of competent jurisdiction to make a Care Order which transfers the majority of the powers of a parent or guardian to the relevant Health Board Under Section 47 the District Court has the requisite power to give such directions and make such Order on any question affecting the welfare of the child as it thinks proper In my view in a situation where a child is in care pursuant to a Care Order this power in the District Court would be sufficient to enable the District Court itself to consent to the placement of the child outside the jurisdiction within the terms of Section 40 of the Adoption Act 1952 Accordingly I would dismiss the appeal and affirm the Order of the learned High Court judge The answers to the questions posed in the Case Stated by the judge of the District Court are accordingly i No ii Yes iii Yes THE SUPREME COURT Record No 103 2001 Denham J Murphy J Murray J McGuinness J Hardiman J IN THE MATTER OF SECTION 52 1 OF THE COURTS SUPPLEMENTAL PROVISIONS ACT 1961 BETWEEN THE WESTERN HEALTH BOARD APPLICANT RESPONDENT AND KAREN M RESPONDENT APPELLANT Judgment of Mrs Justice McGuinness delivered the 21st day of December 2001 This is an appeal from a judgment and order of the High Court Finnegan J on a Consultative Case Stated The question of law in the Case Stated was referred to the High Court pursuant to Section 52 of the Courts Supplemental Provisions Act 1961 by Judge Mary Devins of the District Court at the request of both the Applicant and the Respondent The proceedings before the District Court concern a child who is in the care of the Applicant Respondent pursuant to a Care Order made under Section 18 of the Child Care Act 1991 The Respondent Appellant is the mother of the child The Applicant Respondent the Health Board seeks to place the child in the foster care of a relative of the Respondent Appellant the mother This relative resides in England The Health Board has made an application to the District Court pursuant to Section 47 of the Child Care Act 1991 for a direction that the child be so placed The Consultative Case Stated is set out by the learned judge of the District Court as follows a The proceedings herein come before me by way of an application pursuant to Section 47 of the Child Care Act 1991 for directions on the questions affecting the welfare of a child in the care of a Health Board and more specifically whether it would be in the best interests of the above named child Thomas M to be placed in foster care with a cousin of Karen M in the United Kingdom At a hearing of the proceedings before me on the 28th day of February 2000 the direction sought herein by the Applicant was amended on consent to read as follows That the above named child Thomas M be placed in care with a cousin of Karen M in the United Kingdom b When the matter came before me on the 28th day of February 2000 the following witnesses gave evidence at the hearing namely for the Applicant Aisling Ryan and for the Respondent the Respondent herself The facts admitted or proved before me are as follows 1 The infant Thomas M was born on the 19th day of May 1996 The Respondent who is not married is the infant s mother Arising from concerns felt by the Applicant due to the Respondent s psychiatric condition and inability to care for the infant an Emergency Care Order was sought and obtained on the 7th day of June 1996 an Interim Care Order was sought and obtained on the 19th June 1996 and further Interim Care Orders were sought thereafter until the final hearing of the said care proceedings on the 22nd day of June 1997 On that occasion an order was made pursuant to Section 18 of the Child Care Act 1991 committing the infant to the care of the Applicant until he attained the age of eighteen years The basis for the making of the said order was the Respondent s inability to care for the said infant due to her ongoing psychiatric difficulties 2 At all material times since the infant was first committed into the care of the Applicant he has been placed by the Applicant in the care of foster parents in the County of Mayo At all material times the Applicant perceived the said placement as being a short term placement only as the said foster parents were not in a position to offer the infant long term fosterage In or about the early part of 1999 the issue of the long term care of the infant was under active consideration by the Applicant herein The Applicant was approached by a married couple resident in Kent England namely I and P H I H is a cousin of the Respondent The Hs indicated to the Applicant that they were interested in fostering the infant on a long term basis Once this had been indicated the Applicant arranged for an assessment to be carried out on the Hs by the child care authority in England in whose functional area the Hs resided namely Kent Social Services The outcome of the said assessment was satisfactory The witness for the Applicant gave evidence in her opinion as a professional the said witness being a social worker employed by the Applicant that it was generally better that children be placed with relatives and it was her further opinion that the particular infant in this case should be placed with relatives and more particularly with the Hs in England In cross examination the witness gave evidence that while it would not be unusual for the relatives of a child in care to contact the Applicant with respect to placement of a child with them that it would be unusual for such contact to be made where there was no relationship between the relatives and the parent or parents of the infant in question She further gave evidence that as far as she was aware there was no relationship between the Hs and the Respondent sic On the evidence of the witness for the Applicant I H was aged somewhat under 50 and P H somewhat over 50 On further cross examination the witness for the Applicant indicated that the possibility of arranging foster parents in this jurisdiction had been considered by the Applicant and that a family had been identified who resided in the County of Mayo The witness went on to indicate that in the event that approval was not forthcoming for a placement abroad there would be a family available to take the infant in this jurisdiction on a long term basis 3 The Respondent gave evidence in which she acknowledged that she had a serious medical problem and psychiatric difficulties over the years She accepted that the infant had to be taken into care due to her condition whilst indicating that she still held on to the possibility that the infant and a second child born subsequently to the infant the subject matter of these proceedings also now in the care of the Applicant would some day be returned to her The Respondent gave further evidence that I H had only been in the briefest contact with her in recent years and had not made her aware of her and her husband s interest in the infant being placed with them The Respondent expressed the opinion that it was not in the best interests of the infant that it be placed in the care of the Hs in particular or more generally that he go to England In response to a clarification which I sought from the Respondent she indicated that she had no difficulty with the infant being in care locally as she would then be able to seem him regularly and as a way towards his return to her care as soon as possible On cross examination the Respondent agreed that she had had problems with her medication She accepted that there had been difficulties with access in the past and that a lot of this was due to her fault although she also ascribed some fault to the Applicant It was put to her that the medical advice was that the infant would not in the foreseeable future be returned to her care and she accepted that this was the situation at that moment but that she hoped that would change The Respondent further gave evidence that she had been residing in this jurisdiction for the last seven years She accepted that all her immediate family resided in England She did not accept that the infant would have more contact with his extended family if he was in the care of a relative in England and gave evidence that neither her parents nor siblings had expressed interest in meeting the infant She further gave evidence that the Hs had no contact with her parents or family in England c At the conclusion of the Respondent s evidence I sought submissions from the legal representatives for the Applicant and the Respondent in respect of certain matters which concerned me It had previously been indicated to me that both the Applicant and the Respondent were of the opinion that a question or questions of law arose in the proceedings before the Court in respect of the power of the Applicant or in the alternative the Court to place or direct the placement of an infant in the care of a Health Board pursuant to Section 18 of the Child Care Act 1991 with relatives or foster parents outside the State pursuant to the provisions of Section 36 of the Child Care Act 1991 and or Section 47 of the Child Care Act 1991 They requested that I so state a case pursuant to the provisions of Section 52 1 of the Courts Supplemental Provisions Act 1961 I was of the opinion that the obtaining of a determination of the High Court in relation to the matters raised would be desirable The proceedings were then adjourned in the first instance to the 15th March 2000 for the purposes of enabling the parties to agree the questions of law to be referred to the High Court The said agreed conditions are as set out at paragraph d hereunder d Accordingly the questions of law for the determination of the High Court are as follows 1 In relation to a child who is in the care of a Health Board pursuant to Section 18 of the Child Care Act 1991 i Can the Health Board lawfully place the child with relatives or foster parents outside the State pursuant to the provisions of Section 36 of the said Act ii Can this Court lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the said Act iii If the answer to question i and or ii above is Yes can the period for which the child is so placed be limited The Case Stated is dated the 25th day of September 2000 It is clear as is accepted by both parties that the questions posed in the Case Stated are not only of vital importance to the child and to his mother but also have far reaching implications both for the Applicant Respondent and for all other Health Boards in the State The Decision of the High Court The matter came on for hearing in the High Court before Finnegan J as he then was who delivered a reserved judgment on 14th March 2001 Having considered the provisions of Section 36 of the Child Care Act 1991 in the context of the Act as a whole he held that the section required the Health Board to continue to exercise control and supervision over a child that was placed in its care and held that Section 36 did not empower a Health Board to place a child in care with relatives or foster parents outside the State This aspect of the decision of the learned High Court Judge is not under appeal and is accepted as correct by both parties There is therefore no need at this point to consider in any detail the reasons which led the learned High Court judge to this conclusion In this connection it was pointed out in oral argument to this Court by Senior Counsel for the Health Board that the original application to the District Court had been made pursuant to Section 47 of the 1991 Act No application had been made pursuant to Section 36 Finnegan J went on to consider the terms of Section 47 of the Child Care Act 1991 He referred to the functions of the District Court under the 1991 Act and pointed out that under a number of Sections of that Act the Court might act of its own motion He drew attention to the terms of Section 24 of the Act which provided that in any proceedings before a Court under the Act in relation to the care and protection of a child the Court having regard to the rights and duties of parents whether under the Constitution or otherwise should regard the welfare of the child as the first and paramount consideration He went on to say The District Court accordingly it seems to me is something more than a court of appeal and exercises something more than a supervisory jurisdiction The sections which I mention allow the Court to act on its own motion and in particular Section 22 If the Court s function was appellate or supervisory only then it might well be appropriate to seek to construe Section 47 of the Act in a restrictive manner However this Section is couched in the widest possible terms and I can find nothing in the Act insofar as the same deals with the powers functions and duties of the District Court to suggest that a restrictive interpretation of Section 47 is appropriate Unlike Section 36 there is no qualification requiring control and supervision in Section 47 It seems to me therefore that Section 47 empowers the District Court to do whatever it deems appropriate to achieve the policy of the Act as a whole and the objectives set out in Section 24 of the Act Accordingly I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Act The learned High Court judge went on to consider the terms of Section 40 of the Adoption Act 1952 I shall refer to that Section as it has been affected by the judgment of the High Court in The State At the Prosecution of K M and R D v the Minister for Foreign Affairs Marie Burke and the Attorney General 1979 IR 73 later in this judgment The learned High Court judge further found that in relation to Question iii of the Case Stated that There is no limitation placed on the exercise by the District Court of its powers and accordingly I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Act and with or without the period for which the child is so placed being limited He concluded that the answer to the questions posed in the Consultative Case Stated was as follows i No ii Yes iii Yes He made an order accordingly on the 14th March 2001 It is against this judgment and order that the Appellant Respondent has appealed to this Court Notice of Appeal In her Notice of Appeal the Appellant seeks an order setting aside the relevant parts of the order of the High Court and in its place an order answering the questions ii and iii posed in the Consultative Case Stated herein as No In the written and oral submissions made to this Court on behalf of the Appellant reliance was in the main placed on the following grounds of appeal that the learned trial judge erred in law and in fact or on a mixed question of law and fact as follows a In holding that in the exercise of its jurisdiction pursuant to the Child Care Act 1991 the District Court exercises something more than a supervisory jurisdiction and that that finding justified interpreting Section 47 in other than in a restrictive manner b In holding that there was nothing in the Child Care Act 1991 requiring the restrictive interpretation of Section 47 of the said Act c In failing to properly construe the meaning of Section 47 of the Child Care Act 1991 in the light of the overall statutory powers and duties of the District Court under that legislation d In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully direct the placement of a child placed in the care of the Health Board pursuant to Section 18 of the Child Care Act 1991 with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Child Care Act 1991 e In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully place a child with relatives or foster parents outside the State the learned trial judge failed to have proper regard to or to properly interpret the statutory powers and duties of the District Court to monitor a child placed in care for the entire of the period that the child remains in care f In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully place a child with relatives or foster parents outside the jurisdiction the learned trial judge failed to correctly interpret the provisions of the 1991 Act in that he failed to have due regard to the fact that in so placing a child the District Court divests itself of all of its statutory functions and powers in relation to the child s concern g In holding that a Health Board into whose care a child has been placed pursuant to the provisions of the Child Care Act 1991 is a guardian for the purposes of Section 40 3 of the Adoption

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  • belt caused the problem and on that I don t think she suffered any damage I am satisfied that this accident should not have occurred but it did result in some damage but not nearly as much as the plaintiff has alleged The fact that she was vulnerable from her previous accidents and injuries is a matter which the defendant has to put up with One must accept the plaintiff as one finds them I don t think she suffered nearly as much as she put it on The judge then went on to award the plaintiff general damages to date of 20 000 and general damages for the future of 5 000 with 301 special damages The defendants contention that this was far too high would seem to be well founded The learned trial judge did not list the plaintiff s alleged injuries in the judgment but in her evidence the plaintiff complained as follows Although she did not feel any pain immediately following the accident after she went home she was shaking and upset She lay down on the settee and fell asleep When she woke up her right shoulder was stiff and painful and her chest was sore as well as her lower back She more or less stayed in bed for a weekend and was a lot worse on the Monday morning She said that her shoulder became more painful that she had pain in the back of her neck that it was radiating up that her eyes were feeling sore her head was heavy and that she was afraid there was something wrong with her She visited her doctor and was referred to casualty At that stage her headaches were still severe and she had a collar fitted to her neck She was sent for physiotherapy but had to discontinue it because it appeared to be causing the headaches She found she was not able to do some of her normal housework such as hoovering etc and she found it painful to dress in the mornings She had continuous headaches and pain in the neck As of October 2000 when she visited the surgeon Mr MacDevitt she was complaining of headaches painful stiff neck and soft tissue injury to the back of her right shoulder She also had chest injuries She undoubtedly alleged some continuing symptoms as of the date of the hearing It was open to the trial judge to find that there would be some suffering into the future But it is obvious from his judgment that he did not attach great significance to any of her injuries Indeed he more or less rejected the chest injury This court cannot interfere with the award of a High Court judge unless the award is substantially above or below what might be considered by this court to be a reasonable award In this case I take the view that the award of 25 000 for general damages even allowing for the fact that 5 000 of that was for future pain and suffering was wholly excessive and I would substitute a figure of 12 500 for general damages I would therefore allow the appeal to the extent of substituting the award of 25 301 damages with an award of 12 801 Denham J Geoghegan J Fennelly J 154 01 THE SUPREME COURT BETWEEN SHARON CAWLEY Plaintiff Respondent and JOSEPH FOLEY AND ROSE FOLEY Defendants Appellants JUDGMENT of Mr Justice Geoghegan delivered the 20th day of December 2001 This is an appeal from a judgment of the High Court Kinlen J awarding to the plaintiff 25 301 damages in a road traffic personal injuries claim The defendants have appealed the award on numerous grounds as set out in the notice of appeal But for all practical purposes there are three issues on the appeal These are 1 Was it open to the learned trial judge to find that the plaintiff suffered any injury at all in the incident to use a neutral term grounding the action 2 Having regard to lack of clarity of findings by the learned trial judge both as to causality and injuries was the trial unsatisfactory 3 Is the amount of the damages awarded too high It is trite law that the tort of negligence contains three essential elements First of all there must be a duty of care secondly there must be a breach of that duty of care and thirdly damage must result from that breach In this case it is not disputed that the first two components existed It is common case that the plaintiff was driving her car with her three children in it behind the defendants vehicle which was drawing a trailer when the door or flap of the trailer opened and a sink or portion thereof fell out on the road The plaintiff alleges that she had to jam on her brakes in order to avoid any impact and that as a result of the sudden stopping process she has been injured To have set up the trailer in such a way that a sink could fall out of it on the road was obviously negligent and that is not in dispute What is in dispute is whether the plaintiff when braking could have conceivably suffered any injury It is therefore the third element in the tort of negligence which is in issue Counsel for the defendants argue that the learned trial judge s decision in favour of the plaintiff was perverse in that on any view science must negative the contention that any kind of injury could have been caused But scientific theories depend on proven facts The defendants contend that on the evidence as appearing in the transcript it was not open to the learned trial judge to find in favour of the plaintiff on the liability issue or alternatively that if it was open to him to so find he has not given any indication in the judgment as to what findings of

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  • any other necessary documents including accounting statements prepared under Regulation 31 1 hereof for the inspection of the accountant and shall afford to such accountant all other facilities which the accountant may consider necessary for completing an inspection and report to the Council on the result of the investigation Subject to the provisions of the next succeeding sub paragraph of this paragraph the solicitor shall be responsible for the costs and expenses of such inspection and report if the Council determines that there has been a material breach of the Regulations 3 Before instituting an inspection on a written complaint lodged with it the Council shall require prima facie evidence that a ground of complaint exists and may require the payment by the person lodging the complaint of a reasonable sum to be fixed by it to cover the costs of the inspection and the costs of the solicitor against whom the complaint is made and any sum not so applied shall be refunded to the person lodging the same 4 5 not relevant The Law Society exercised a power granted by regulations which they had themselves made pursuant to powers conferred by the Solicitors Act 1954 and with the concurrence of the President of the High Court It is bound to respect the limits imposed expressly or impliedly by the governing statute and the regulations themselves It has been determined that in making its decision it pursued a purpose which was not authorised by the enabling regulations The matter was approached in the High Court on the basis that the Law Society was pursuing two aims of equal importance If that is the correct approach then it made a decision which was designed insofar as one of those aims was concerned to pursue an unauthorised purpose The issue is essentially one of ultra vires The delegates of statutory power cannot be allowed to exceed the limits of the statute or as here the secondary legislation conferring the power The rationale for this is simple and clear The Oireachtas may by law while respecting the constitutional limits delegate powers to be exercised for stated purposes Any excessive exercise of the delegated discretion will defeat the legislative intent and may tend to undermine the democratic principle and ultimately the rule of law itself Secondly the courts have the function of review of the exercise of powers They are bound to ensure respect for the laws passed by the Oireachtas A delegate of power which pursues though in good faith a purpose not permitted by the legislation by for example combining it with other permitted purposes is enlarging by stealth the range of its own powers These principles in my view must inform any test for deciding whether a power has been exercised ultra vires Henchy J stated in Cassidy v The Minister for Industry and Commerce 1978 1 I R 297 The general rule of law is that where Parliament has by statute delegated a power of subordinate legislation the power must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation Otherwise it will be held to have been invalidly exercised for being ultra vires The present case is not one where some secondary or incidental advantage follows from the decision made The impermissible aim or purpose was clearly intrinsic from the outset It is not necessary that it be dominant The matter was well put in a passage from de Smith s Judicial Review of Administrative Action 5th ed at page 330 quoted by the learned trial judge If power granted for one purpose is exercised for a different purpose that power has not been validly exercised the person so authorised cannot be allowed to exercise the powers conferred on them for any collateral object that is for any purposes except those for which the legislature has invested them with extraordinary powers Although Glidewell J in R v Inner London Education Authority 1986 1 All ER 19 in a passage also cited in the judgment under consideration spoke of the general problem of plurality of purpose as a legal porcupine which bristles with difficulties as soon as it is touched he formulated a simple and clear test for the resolution of the case before him namely whether in reaching its decision ILEA was pursuing an unauthorised purpose namely that of persuasion which has materially influenced the making of its decision my emphasis see page 36 The decision of Glidewell J was cited in the judgment of Higgins J in the case of In the Matter of an Application by Denis Gerard Murray 1987 N I J B 1 which concerned the transfer by order of the Chief Constable of the RUC of four police officers who had given what the Chief Constable considered to be untruthful evidence at a disciplinary enquiry Higgins J found that while had had no doubt that the Chief Constable was concerned to maintain the efficiency integrity and reputation of the police force one of his motives for the decision to transfer was to inflict punishment which was admitted not to be a proper statutory purpose Since he considered that the Chief Constable had taken into account an irrelevant consideration the decision was invalid see page 19 of the judgment Mr Feeney for the Law Society cited in argument a passage from De Smith Woolf and Jowell Judicial Review of Administrative Action 5th Edition Sweet Maxwell London 1995 pages 340 to 343 to suggest using the expression later used by Glidewell J that the question of plurality of purposes is a legal porcupine which bristles with difficulties Early in that passage the expression colourable device appears in a citation of Westminster Corp V London and North Western Railway 1905 A C 426 The local authority had constructed a public convenience under statutory powers Because of its situation under a street with a subway it could be used as a means of passing under the street by members of the public who did not wish to use the convenience Lord Macnaghten stated page 432 that in order to make out a case of bad faith it must be shewn that the corporation constructed the subway as a means of crossing the street under colour and pretence of providing public conveniences which were not necessary at that particular place my emphasis Neither he nor any of the Law Lords said that such a demonstration was necessary in order to invalidate an exercise of statutory powers In the particular case the provision of a public passage under the street was an incidental consequence or side effect of the authorised construction of the conveniences In the present case the finding of the learned trial judge places the dual objectives of the appointing decision on an equal level of importance It is trite law that statutory powers must be exercised reasonably and in good faith and only for the purpose for which they were granted The pursuit of the impermissible objective was as important to the Law Society as the permissible one Such an exercise of delegated power cannot be allowed to stand Nor do I think the appointing decision can be rescued in part by severing the good part from the bad part In Pigs Bacon Commission v McCarron O Higgins C J at page 469 distinguished Cassidy on the ground that the orders made by the Minister stood and continued to operate to the extent and in the manner contemplated by the empowering legislation In McCarron the authority had made an order for the payment of a specified amount of levy and the Court could not rewrite that by substituting a reduced levy The appointing decision in this case was a single one It is not possible for the Court to sever it I reach that conclusion for three reasons Firstly it does not distinguish between the valid and the invalid purposes it purports to authorise Thus it does not lend itself to the sort of severance that occurred in State McKeown v Scully and Glencar Exploration plc v Mayo County Council Secondly it is not possible to limit its prospective effect which was possible in the unusual circumstances of Cassidy If an application for judicial review had been heard before the appointing decision had been acted upon it might have been possible for the Court to make an order limiting he investigation to be carried out Even then however a question might have arisen as to whether a decision so heavily influenced by an impermissible consideration should be allowed to stand the Law Society might not it could have been argued have made the appointing decision at all if it had not been influenced by its concern about fraudulent claims Thirdly I think the decision should be quashed in any event because the Law Society engaged in a policy of deliberate concealment of its intentions especially when as this Court has held the concealed intention related to material which it was not authorised to investigate by means of the accounts regulations In saying this I am not saying that the Law Society was acting mala fide in the sense of knowingly exceeding their powers That has not been claimed in the present case other than by advancing the colourable device argument I would therefore set aside the decision of the Law Society to appoint the investigating accountant The issue then arises as to the further consequences of the invalidity of that decision As it happens the investigating accountant has already reported to the Law Society The Compensation Fund Committee following a specially convened meeting on 9th February 1996 at which Mr Kennedy attended formed the opinion that there was evidence of misconduct including serious breaches of the Solicitors Accounts Regulations which it considered warranted an enquiry by the Disciplinary Tribunal of the High Court to which the matter was thus referred It is common ground that in reaching this conclusion the Compensation Fund Committee considered the report of the investigating accountant As appears from the summary of the submissions of counsel for Mr Kennedy it is claimed that it follows from any decision setting aside the appointing decision that the material gathered by the investigating accountant appointed by it cannot be used against the applicant for any purpose relying on the criminal law cases referred to earlier in this judgment Counsel for Mr Kennedy acknowledged that no authority could be found for the application of this line of case law to administrative proceedings of the type at present in issue That line of cases depends for the basic proposition it lays down on a finding by the Court that there has been a knowing and deliberate breach of the constitutional rights of the person against whom the impugned evidence is to be tendered It is clear in particular from the judgment of Finlay C J in The People D P P v Kenny that the Court was motivated by the need in the course of the criminal process to adopt a rule which would act as a sufficiently powerful deterrent against the abuse by the police arm of the State of the exceptional powers which they may exercise while engaged in the investigation of crime The exclusionary rule is not based on concerns about the relevance or probative value of the impugned evidence Indeed Finlay C J accepted see page 134 that it suffered from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice The constitutional rights at issue are typically the right to liberty or the inviolability of the person or of a dwelling In the investigation of crime the law confers on the police extensive powers not normally possessed by disciplinary or administrative tribunals to encroach on such fundamental rights I do not exclude the possibility that such a situation may depending on the facts of the case calling for the application of those principles in the sphere of administrative and in particular disciplinary hearings But the scope for such situations to arise must necessarily be extremely limited They do not in my estimation arise here The excess of statutory powers was not a trivial one but it occurred in the course of the conduct by the governing body of the profession of their supervisory role over solicitors No comparison can be made with the illegal and hence unconstitutional detention of a suspect or an unauthorised search of his person or of his dwelling Mr Kennedy has not identified any constitutional right of his which was affected by the investigation I turn then to the illegality attendant on the investigation Here it is easier to find place for the application of the balancing test proposed by Kingsmill Moore J He stressed the need to have regard to all the circumstances He was essentially however considering the public interest just as was Finlay C J in the Kenny case Was the obtaining of the evidence whose admissibility is at issue attended with such circumstances of illegality that it would unconscionable to allow the authority to use it The questions which Kingsmill Moore J posed to himself suggest that a comparatively serious case of intentional illegality has to be established I agree that an element of deliberate and knowing misbehaviour must be shown before evidence should be excluded It is not possible to unknown something already known The courts should be slow to adopt any mechanical exclusionary rule which makes it easy to prevent disciplinary tribunals from receiving and hearing relevant and probative material The balance should be struck between the rights of individuals and those professional bodies assigned the task of supervising their behaviour so as to give careful weight to two competing considerations firstly the test adopted should not unduly impede the latter types of body from performing their duty of protecting the public from professional misbehaviour secondly members of professional body should be protected from such clear abuse of power as would render it unfair that the evidence gathered as a result be received It is necessary in this case to have particular regard to the regulatory scheme of which the investigation and report form a part According to Regulation 29 quoted above the investigating accountant is to report to the Council of the Law Society The Compensation Fund Committee is by virtue of a decision of the General Council of the Law Society of 16th October 1992 delegated with the powers of the Council under the Solicitors Accounts Regulations as explained in the judgment of Kearns J in the High Court Hence the accountant s report must be taken as having been made to the Law Society The appointing decision and the report of the accountant are inseparable parts of the process One of the circumstances which I believe had a particular influence in the present case was the concealment by the Law Society of the so called hidden agenda namely the investigation of fraudulent claims The learned High Court judge has given an account of the hearing of an interlocutory injunction application brought by the Law Society before Costello J at the end of July 1993 That learned judge granted an interlocutory injunction against Mr Kennedy requiring him to produce all files and other documents required However the argument on behalf of Mr Kennedy was limited to the question of the privilege attaching to client files Kearns J found that he had no real opportunity of addressing other issues In reality the hidden agenda had not been admitted by the Law Society at that stage Costello J was not informed that the Law Society were engaged in an investigation of the pursuit of fraudulent claims The absence of this knowledge deprived Mr Kennedy of the opportunity to ask the court to order the Law Society to desist from continuing that aspect of the investigation If he had been in a position to challenge that part of the investigation the accountant s report would not have contained any material about the processing of spurious claims That factor weighs heavily in the scales against permitting the Law Society to use the report of the accountant as it stands Furthermore I think the report of the accountant is an integral step in the regulatory procedure If the appointment of the accountant was invalid as I think it was then the report of the accountant on her investigation was unauthorised though part of the material contained in the report could legitimately have been gathered While as was pointed out at the hearing of the appeal a report being the product of an inquiry cannot be quashed as if it were a decision I think it is indissociable from the decision of the Compensation Fund Committee based upon it which I think should be quashed The Committee clearly had the entire report before it It is not necessary to make any further order at this stage The order I propose does not prevent the Committee from making a new decision based on evidence properly gathered Accepting as I do by analogy the approach outlined by Kingsmill Moore J to the use of illegally obtained evidence in criminal cases I do not think that in the absence of evidence of deliberate and knowing abuse it inhibits a professional disciplinary body from relying on evidence which could have been lawfully acquired but was in fact gathered as a consequence of a decision rendered invalid by the contemporaneous pursuit of an unauthorised purpose On the other hand for the reasons already given I do not believe that the Law Society should be permitted to rely on the evidence of the processing spurious claims Finally the Court has already reserved to the High Court any question of damages to be paid to Mr Kennedy arising from the appointment and investigation of the accountant For the elimination of all doubt it should be emphasised that nothing in this judgment implies that any entitlement to damages flows from the invalidity of the appointing decision The High Court will consider that matter in the light of the general law including the recent decision of this Court in Glencar Exploration plc v Mayo County Council Unreported 19th July 2001 THE SUPREME COURT Record No 312 1999 Murphy J Murray J Hardiman J McGuinness J Fennelly J BETWEEN GILES J KENNEDY CARRYING ON PRACTISE UNDER THE STYLE OF GILES J KENNEDY AND COMPANY APPLICANT AND THE LAW SOCIETY OF IRELAND PATRICK JOSEPH CONNOLLY AND AISLING FOLEY RESPONDENTS JUDGMENT delivered the 20th day of December 2001 by FENNELLY J This judgment should be read with the judgment of Murphy J delivered on 4th April 2001 That was the unanimous judgment of the Court I do not propose to repeat the account of the facts and issues contained in that judgment except where necessary I will refer to the Applicant Appellant as Mr Kennedy and to the Respondents except where necessary as the Law Society The principal conclusion of the judgment of Murphy J which is now relevant is set out at page 17 of the unreported text He rejected the submission of the Law Society that the investigation of fraudulent claims is not an unauthorised purpose under the Solicitors Accounts Regulations 1984 He also held As an investigating accountant is not empowered by the Regulations to investigate fraudulent claims processed by a solicitor he may not be appointed for that purpose The issue at present before the Court flows from the ensuing passage In the present case it would seem that Ms Foley was appointed for a duality of purposes or on the basis of an ulterior motive As the learned trial judge held Ms Foley was required to under take a two pronged investigation One prong of the investigation that is to say the ascertainment by her of whether Mr Kennedy had complied with the Accounts Regulations was fully and properly disclosed the other prong the investigation of suspect litigation processed by Mr Kennedy s firm was concealed initially though quickly became apparent Both investigations proceeded and were completed in spite of the objection by Mr Kennedy to the production of certain confidential documents which ultimately he was required to produce by the order of Costello J made on the 29th day of July 1993 The report of Ms Foley formed the basis of the decision of the Society to seek an inquiry in February 1996 by the Disciplinary Tribunal of the High Court into the conduct of Mr Kennedy Whether in reaching that decision the Society was entitled to rely on all or any part of Ms Foley s report is a matter which would require further consideration As a consequence Murphy J stated on the last page of his judgment There remains the question as to what legal consequences flow from the appointment by the Society for two purposes one of which was ultra vires and the other intra vires The matter must be remitted to the High Court for the purposes of assessing damages if any to be awarded to Mr Kennedy but it would seem appropriate for this court to determine first whether the appointment of Ms Foley was defective in whole or in part and secondly whether the report prepared by her or any part of it can be relied upon by the Society for any purpose It will be necessary also to consider the nature of the order to be made by this court having regard to the complex history of the proceedings and the orders already made herein Mr Kennedy s Submissions Mr Kennedy relies strongly on the statement of Murphy J already quoted that Ms Foley the accountant appointed by the Law Society to investigate his practice was appointed for a duality of purposes or on the basis of an ulterior motive Mr Gilhooly Senior Counsel for Mr Kennedy argued that the investigation of fraud was in fact the dominant motive for the appointment but that even if it was not the appointment was invalid because the Law Society took into account irrelevant considerations when making its decision Consequently he claimed the reports of the investigating accountant so appointed cannot be relied on for any purpose The learned trial judge said he was unable to formulate a view as to which of the two purposes for which the accountant was appointed was dominant He acknowledged the distinction between the time and effort expended on the enquiry and its purpose and concluded that he could not form any different view as between the underlying purpose and a 50 50 apportionment between them Mr Kennedy asks this Court to review this conclusion and to substitute a finding that the investigation of fraudulent claims was the dominant motive In my view this Court cannot accept that submission The finding is essentially one of fact found by the learned trial judge after a lengthy and careful hearing as to the degree of importance to be attributed to two different sources of motivation The principle constantly applied by this Court with regard to the exercise of its appellate jurisdiction in relation to findings of fact by a judge sitting in the High Court was comprehensively explained by McCarthy J in Hay v O Grady 1992 I R 210 As applied to this case it means that the finding of Kearns J cannot be disturbed once it is supported by evidence In this case there was ample evidence to ground his conclusion Hence the submissions of Mr Kennedy must be approached on the alternative basis advanced by him namely that the decision of the Law Society was motivated in part by an impermissible consideration namely that Mr Kennedy s practice should be investigated in order to discover whether it was being used to process fraudulent personal injury claims Mr Kennedy relies on Cassidy v Minister for Industry and Commerce 1978 I R 297 Cassidy on Re Murray s Application 1987 N I J B 12 and on R v Inner London Education Authority 1986 All ER 29 for the proposition that it is sufficient to establish that the decision maker took into account an impermissible consideration in order to conclude that the decision arrived at was invalid Mr Kennedy also argued that a consequence of the invalidity of the appointment of the investigating accountant is that the evidence obtained by the accountant and in particular the report made to the Law Society cannot be used by the decision maker Counsel cited The People Attorney General v O Brien O Brien s case 1965 I R 142 The People v Shaw 1982 I R 61 The People D P P v Kenny 1990 2 I R 110 All these were criminal cases They concerned the admissibility as against an accused person of evidence that had been obtained by means of the infringement of his personal rights guaranteed by the Constitution The gravamen of these decisions is summed up in the judgment of Finlay C J speaking for the majority in the last of these cases where he said page 134 I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its the court s discretion No authority was cited which applied this line of case law to invalid administrative acts It was also claimed however that the use by the Law Society of the Solicitors accounts Regulations to investigate fraudulent insurance claims when that was not authorised by the Regulations amounted to the employment of the colourable device of the Regulations to achieve indirectly what could not be achieved directly This submission was made by reference to the language of Walsh J in The People D P P v Howley 1989 I L R M 629 Walsh J there accepted at least as a hypothesis that the arrest of the suspect on suspicion of commission of one offence cattle maiming but in reality in order to investigate another murder would have been such a colourable device as to render the arrest unlawful and the evidence of a confession of guilt of the murder inadmissible The offence of cattle maiming had been made a scheduled offence for the purposes of the Offences against the State Act 1939 and the gardai were empowered to arrest a person and to detain that person for strictly limited periods of time to enable them to investigate whether he had committed it Walsh J found that the evidence justified the trial judge in finding that the gardai were genuinely investigating both the murder and the cattle maiming Hence the colourable device argument failed Mr Kennedy did not allege however that the learned trial judge had made any finding that the Law Society had used the appointment of the accountant as a colourable device but asked this Court so to find Insofar as the evidence to be proferred was obtained illegally as distinct from unconstitutionally counsel for Mr Kennedy relying on a passage from Charleton McDermott and Bolger Criminal Law Butterworths Dublin 1999 par 2 59 submitted that the Court should engage in the sort of balancing exercise posited by Kingsmill Moore J in the following passage from his judgment in O Brien s case It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of and by means of illegal actions and that the answer to the question depends on a consideration of all the circumstances On the one hand the nature and the extent of the illegality has to be taken into account Was the illegal action intentional or unintentional and if intentional was it the result of an ad hoc decision or does it represent a settled or deliberate policy Was the illegality one of a trivial or of a technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms Were there circumstances of emergency or urgency which provided an excuse for the action The Law Society s Submissions The Law Society in its written submissions claimed that the report made by the accountant could be severed that the parts concerned with fraudulent claims were readily distinguishable from those dealing with infringements of the accounts regulations The report could therefore be severed However at the hearing of the appeal Mr Kevin Feeney Senior Counsel on behalf of the Society extended this severance argument to the decision appointing the investigating accountant The decision itself can he claimed be severed and what emerges is a body of information In the latter respect reliance was placed on the judgment of Henchy J in Cassidy The Court held that the order made by the Minister controlling the prices of intoxicating liquor in Dundalk was unreasonable and therefore invalid insofar as it subjected the sale of liquor in lounge bars to the same maximum prices as its sale in the very different conditions of public bars The Court did not nonetheless annul the order in its entirety but chose to interpret it so as to restrict its application to sales in public bars Henchy J stated My adjudication is that the impugned orders are not invalid for being ultra vires in so far as they apply to public bars but that their extended application to lounge bars is not within the scope of the delegated legislative functions If the orders had been composed in such a way that the provisions applicable to public bars could be severed from the rest I would rule that such provisions should be severed and declared valid as being intra vires But the orders do not lend themselves to verbal severance they simply fix maximum prices without reference to whether they are charged in lounge bars or public bars However there is no reason why the orders should not be severed in the range of their application so that they may be preserved and implemented in so far as they are intra vires and ruled inoperable only in so far as their application would run into the area of ultra vires In a similar way it was contended that the appointment of the investigating accountant could be held valid insofar as it authorised investigation of the books and accounts and invalid only insofar as it was designed to investigate the processing of fraudulent claims The Law Society submitted that Mr Kennedy could succeed in quashing the entire decision only if the appointment of the accountant was in the terms of Howley s case a colourable device It was accepted that there was a duality of purpose in making the appointment but the Society was entitled to investigate the accounts Even if the impermissible investigation of the fraudulent claims was the dominant purpose that would not invalidate the decision The learned trial judge observed that if the time and effort expended on this particular investigation lends itself to a 50 50 apportionment between the books and accounts on the one hand and fraudulent claims on the other and if the purposes can be similarly assessed he did not see how the former part of the investigation could in such circumstances be described as a colourable device The appointment for the legitimate and permissible purpose of investigating compliance with the accounts regulations would have to have been a colourable device for the pursuit of the illegitimate one So far as the use of the accountant s report was concerned it was submitted that the severance argument would apply It was perfectly possible to exclude those parts of the report which represented the fruits of the impermissible part of the investigation The Law Society cited a number of examples of the severance of different types of legal instruments though Cassidy remained the principal authority State McKeown v Scully 1986 I L R M 133 a finding of suicide in an inquest verdict and Glencar Exploration plc v Mayo County Council 1993 2 I R 237 one provision of a county development plan prohibiting the grant of any permission for mining were examples of courts deciding that they could annul severable parts of a decision In other cases it has been decided that an impugned provision was not severable In the case of legislation found to be repugnant to the Constitution the question is one of interpretation of the legislative intent If severance were to have the effect of leaving in force a legislative provision that would not represent the intent of the legislature severance would not take place in spite of the provisions of Article 15 s 4 sub s 2 of the Constitution In Pigs Bacon Commission v McCarron 1981 I R 451 the Court of Justice of the European Communities had given rulings that had the effect that a statutory levy scheme in respect of the sale of pork products was invalid insofar as it was devoted to purposes principal amongst them an export bonus scheme which that court considered to be incompatible with Community law The Pigs and Bacon Commission sought nonetheless to recover such part of the levies as was not used to fund such purposes The plaintiff was successful in the High Court relying on Cassidy This court however distinguished Cassidy and reversed that decision O Higgins C J considered that to allow the plaintiff to recover a part only of the levy which the plaintiff had itself certified as payable would involve the court and not the plaintiff Commission in declaring a rate of levy CONCLUSION This court must approach the matter on the basis of the facts found by the learned trial judge I have already referred to the conclusion of Murphy J at the outset of this judgment At page 3 of the unreported judgment he also said By letter dated the 24th May 1993 Mr Connolly wrote informing Mr Kennedy of the fact that Ms Foley had been appointed to carry out the investigation and drawing the attention of Mr Kennedy to his obligations under the accounts regulations It is clear and the learned trial judge has so found that Ms Foley was specifically instructed by the Society that in addition to inspecting the books of account she was to look for evidence of fraudulent claims passing through the practice and secondly that these instructions were not disclosed to Mr Kennedy at the commencement of the investigation or prior thereto Ms Foley was aware of the Lillicrap case and was further informed by Mr Connolly of his suspicions in relation to other fraudulent claims which might have been processed by Mr Kennedy s office Ms Foley was required to investigate whether Mr Kennedy s firm had complied with the Accounts Regulations and whether his firm was involved in spurious claims It was as the learned trial Judge held a two pronged investigation I do not think that it is possible to do justice to the arguments concerning the validity of the exercise by the Law Society of its statutory powers and duties without some further reference to the facts of the case At the conclusion of the evidence the learned trial judge made two specific findings of fact as follows Firstly I found that in initiating the investigation the investigating accountant was specifically instructed by the Law Society that in addition to looking at the books of account to look for evidence of fraudulent claims passing through the practice Secondly I also found on the evidence that this latter aspect of the inquiry was not disclosed to Mr Kennedy either

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  • new business at the moment will mean probably living abroad because the centre of the business will be in central Europe not in Ireland Q I see A So I am looking forward to that Q Why do you say that you are looking forward to that A It is a challenge and I like Germany You know I feel I do as I said earlier I am always a foreigner in Ireland I feel more at home in Germany Q Has this been an ambition that you have had over the years that you would live in Germany A It has been but I have never been able to implement it until now Q Can you tell his lordship where do you see yourself living out your years A I don t know but it could be Germany I think As to his tax returns the notice party said that both he and his father when dealing with the revenue indicated that they did not have an Irish domicile The evidence in the High Court was that both the wife and the third party spoke German in their homes preferred to mix socially with other German nationals living in Ireland and kept up German customs such as celebrating Christmas on Christmas Eve The Applicable Law We are not concerned in this case with the effect of the Domicile and Recognition of Foreign Divorces Act 1986 since that Act was not in force at the time the divorce decree in issue in this case was granted It is clear accordingly that whether that decree will be recognised in Ireland is to be determined in the light of the common law rules of private international law which were applicable at the time The effect of those rules prior to the enactment of the Constitution is succinctly summarised by Professor William Binchy in Irish Conflicts of Law as follows The major principle of recognition was that divorces would be recognised when granted in the country of the spouses common domicile The effect of the operation of the principle that a wife s domicile depended on that of her husband s domicile was that a divorce obtained by either spouse in the country of the husband s domicile would be recognised regardless of the wife s place of residence or where she intended to have her permanent home In C M v T M ILRM 268 it was held by the High Court Barr J that the rule of the dependant domicile of a married woman ceased to be part of Irish law by virtue of Article 50 of the Constitution as being inconsistent with Article 40 1 That view was approved of by this court in W v W 1993 2 IR 477 It was also held by a majority of this court in that case that the common law rule to be applied to the period prior to the 2nd October 1986 was that a divorce would be recognised if granted by the court of a country in which either of the parties to the marriage was domiciled at the time of the proceedings for divorce It was also accepted by the parties as being the applicable rule in the present case The law as to the domicile of the wife and the third party in this case may be stated as follows The domicile of a child under the age of majority is a domicile of dependency i e it is in general determined by the domicile of the person upon whom the child is regarded by the law as being dependent If at the time of his death in 1986 the wife s father had not acquired an Irish domicile and had retained his domicile of origin i e a German domicile the wife s domicile would also have remained a German domicile If the domicile of origin of her mother had similarly not altered when the wife attained her majority under the then law the age of 21 in 1973 the wife would at that point have retained her German domicile Similarly in the case of the notice party if at the date of his attaining his majority in 1970 the domicile of origin of his parents had not altered the notice party would then have had a German domicile It is also the law that either the wife or the notice party or both of them could have acquired a domicile of choice in Ireland after attaining their respective majorities It is not in dispute that prior to the arrival in Ireland of the parents of the wife and the notice party in 1952 and 1955 respectively their parents had a German domicile of origin The law as to the circumstances in which a domicile of origin will be held to have been replaced by a domicile of choice must next be considered The locus classicus in our law as to the acquisition of a domicile of choice is to be found in the decision of the High Court Budd J in Re Sillar Hurley v Wimbush 1956 IR 344 in which the issue was as to whether a testator at the date of the making of his will and of his death had acquired an Irish domicile of choice The evidence was that the deceased was born in Shanghai in the year 1856 of English parents He was brought to England in 1860 where he was educated and continued to reside until 1905 when he came to Ireland to assist in the management of a business during the last illness of his brother in law After the death of his brother in law in the year 1905 he continued to manage the business and to reside in Ireland until the year 1941 when it was sold After that the testator continued to reside in Co Dublin until the date of his death in 1953 He never bought a house in this country but lived in rented property in Dalkey After 1905 he had no residence in England An Irish passport was issued to him in 1931 and renewed up to 1941 A British passport was issued on 13th November 1946 valid to 1951 He was a member of some professional institutions and clubs both in Ireland and in England The testator s wife died in 1942 and he had occasion to make a statement as to domicile to the revenue authorities in connection with her estate He referred to his wife s marriage to him a domiciled English man in 1896 and his reasons for coming to Ireland He said that it was his intention to remain in Ireland only so long as might be necessary and added Although I have lived in Ireland since the year 1905 I never purchased a residence in this country any house in which I have lived being only rented and I have not abandoned my English domicile It has always been my intention when circumstances permit to return to live in England In his will he described himself as a British subject and domiciled in England There was evidence that the testator told a niece of his intention to visit England in 1947 or 1948 but was prevented by his health from doing so He also said that he did not feel that he would travel any more and was better in his own home In the course of his judgment Budd J cited the dictum of Lord Cranworth in Whicker v Hume 28 LJ Ch 396 at p 400 that Domicile meant permanent home and if that was not understood by itself no illustration would help to make it intelligible Budd J commented that this simple and elementary proposition was sometimes in danger of being forgotten He went on to cite the following statement of the law by Black J in Re Joyce Corbet v Fagan 1946 IR 277 Now whatever difference of view may be possible on any other aspect of the law of domicile one principal at least is beyond doubt namely that the domicile of origin persists until it is proved to have been intentionally and voluntarily abandoned Having said that a domicile of choice was acquired by residence factum coupled with an intention to reside permanently or indefinitely animus manend i Budd J also cited the following passages from the speech of Lord Westbury in Udny v Udny LR 1H L Sc 441 Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time It is true that residence originally temporary or intended for a limited period may afterwards become general and unlimited and in such a case so soon as the change of purpose or animus manendi can be inferred the fact of domicile is established The learned judge also stressed that while long residence was of great importance it did not necessarily establish that the domicile of origin had been lost He gave the example of the simple case of a person staying abroad for business reasons for a long period but always with the intention of ultimately returning home to the country of his domicile of origin It was also made clear in that decision that declarations by the person whose domicile is in issue are not necessarily conclusive as to what that domicile is Budd J summed up his conclusions on the law as follows From a consideration of the case law it is clear that it is a question of fact to determine from a consideration of all the known circumstances in each case whether the proper inference is that the person in question has shown unmistakably by his conduct viewed against the background of the surrounding circumstances that he had formed at some time the settled purpose of residing indefinitely in the alleged domicile of choice Put in more homely language that he had determined to make his permanent home in such place That involves needless to say an intention to abandon his former domicile Where he has made a declaration touching on the matter it must be weighed with the rest of the evidence Such a declaration may be a determining factor but will not be permitted to prevail against established facts indicating more properly a contrary conclusion The statement of the law in that case was approved of by Egan J speaking for this court in McC v McC 1996 2 Family Law Journal p 68 at p 70 Conclusions In his judgment the learned High Court judge held that the parents of both the wife and the notice party abandoned their domicile of origin and acquired an Irish domicile of choice at some stage While he makes no express finding that in the case of both the wife and the notice party their parents domicile of origin had been abandoned at the time when they respectively reached the age of majority I think it is to be inferred from his judgment that he had so decided He went on to hold that neither the wife nor the third party had ever acquired a domicile of choice in Germany In the case of the wife there can be little room for doubt that at some stage prior to the death of her father in 1968 her parents had decided to live here indefinitely They had built up a business here they had brought their children with them the latter were being educated in Ireland and going back to East Germany where their home originally had been was out of the question That was also the position of the wife s mother after her husband died while her preference would have been to return to her native country she accepted that in practical terms it was not a realistic option I am satisfied that there was evidence from which the trial judge was entitled to infer that the wife s parents had acquired an Irish domicile when she attained her majority in 1973 Similarly the trial judge was entitled to hold on the evidence that the parents of the notice party had at some stage abandoned their domicile of origin and acquired an Irish domicile and that this had happened prior to the notice party reaching his majority in 1970 They had built a house in the midlands and have never since then at any stage taken any steps to return to Germany to live there Even if it could be said however that the wife and the notice party retained their dependant domiciles of origin when they reached the age of majority in 1973 and 1970 respectively I am satisfied that the only inference that could be drawn from the evidence was that by 1985 when the divorce was granted that domicile had been abandoned They had both been living in this country since their childhood in the case of the notice party since he was 6 and in the case of the wife since she was 10 years old They had been educated in this country worked here had bought a house here and had married and started a family There is nothing to suggest that at any time they had ever intended to reside permanently in any place other than Ireland If the test for establishing whether a person has acquired a domicile of choice in a particular place is whether he has fixed his sole or chief residence there with the intention of continuing to reside there for an unlimited time to use the words of Lord Westbury in Udny v Udny then there seems to me to be no reason to doubt that assuming that they had not lost their domicile of origin when they respectively attained the age of majority they had undoubtedly acquired a domicile of choice by the time of the divorce proceedings in 1986 The somewhat tentative suggestion in evidence by the notice party that he thought it possible given the nature of his business that he might return to live in Germany is of no assistance in determining his domicile in 1986 The fact that all the parties concerned the wife the notice party and their respective parents treasured their links with their native country spoke its language whenever they could had close social relations with other Germans living in Ireland and observed the customs of their land of origin is as Budd J pointed out in Re Sillar Hurley v Whinbush entirely reconcilable with an intention to make Ireland their permanent home The same can be said of the declarations as to their domicile made on different occasions by the notice party and his father for tax purposes I am satisfied that on the established or admitted facts of this case the only inference which could reasonably be drawn from the evidence was that at the time of the German divorce neither the wife nor the notice party was domiciled in Germany and that accordingly the divorce could not be recognised in Ireland While it was suggested in the written submissions that the husband by his conduct at the time in encouraging and facilitating the divorce was estopped from contesting the validity of his marriage I do not think that that argument was seriously pressed during the oral submissions and in my view correctly so It is clear from the judgment of Walsh J in this court in Gaffney v Gaffney 1975 IR 133 that the doctrine of estoppel cannot operate so as to change a person s status where the status as a matter of law has not changed I am satisfied that the learned High Court judge was correct in granting a decree of nullity in this case and I would dismiss the appeal As to the Guardianship of Infant proceedings the wife was not seriously contesting that the de facto custody of Ru should be retained by the husband although she was at least in the High Court urging that there should be joint custody de jure The question of access was left unresolved pending the appeal to this court and should now if the parties cannot reach agreement be determined by the High Court The only matter on which this court was asked to rule was as to whether it was appropriate for Ro to be seen by the trial judge in his chambers While I can understand the approach adopted by the trial judge to this matter in proceedings of this nature the fact remains that as a matter of principle the only evidence which a trial judge in family law proceedings as in other proceedings can receive is evidence on oath or affirmation given in the presence of both the parties or their legal representatives It has long been recognised that trial judges have a discretion as to whether they will interview children who are the subject of custody or access disputes in their chambers since to invite them to give evidence in court in the presence of the parties or their legal representative would involve them in an unacceptable manner in the marital disputes of their parents Depending on the age of the children concerned such interviews may be of assistance to the trial judge in ascertaining where their own wishes lie and that would undoubtedly have been the case with Ru in these proceedings It is however sufficient to say that while the objection to the trial judge having seen Ro in his chambers was well founded as there is no serious issue as to the legal custody of Ru and the question of access if it cannot be agreed must be determined now in the High Court no order is required in respect of the proceedings under the Guardianship of Infants Act I would dismiss the appeal in the nullity proceedings and hear counsel as to the question of costs in all three proceedings I would also hear counsel on the question as to the how the remaining appeal on costs should be dealt with The question of access to the minor child should be dealt with in the High Court if agreement cannot be reached THE SUPREME COURT Keane C J Denham J Murphy J 68 76 77 01 BETWEEN A S OTHERWISE A B APPELLANT RESPONDENT AND R B RESPONDENT PETITIONER JUDGMENT delivered the 19th day of December 2001 by Keane C J Introduction There are before the court appeals arising out of three separate sets of proceedings The first were commenced by way of petition by R B hereafter the husband claiming a decree of nullity in respect his marriage to A S hereafter the wife Such a decree was granted by the High Court Lavan J on the 28th February of this year The second are proceedings brought pursuant to the Guardianship of Infants Act 1964 by the husband against the wife in respect of their two children The High Court on the 28th February also made an order giving the custody of the younger of the two children to the husband the older child at this stage being no longer a minor The third set of proceedings were brought by the husband against the wife pursuant to s 36 of the Family Law Act 1995 and the Domestic Violence Act 1996 The only application made in those proceedings which now is in issue was for costs on the wife s behalf an application which was refused by the High Court Lavan J While notices of appeal in respect of all three sets of proceedings were served on behalf of the wife the written and oral submissions of the parties dealt almost entirely with two issues both arising out of the nullity proceedings The first was whether those proceedings had been conducted by the learned High Court judge in breach of the fair procedures to which the wife was entitled and accordingly whether the order of the High Court should be set aside and the proceedings remitted to the High Court for a new hearing The second was whether assuming the first ground were decided against the wife the learned High Court judge was correct in law in granting a decree of nullity The salient facts insofar as they are not in dispute can be summarised as follows The wife was born on January 5th 1952 in what was then the Federal Republic of Germany West Germany The family came to live in Ireland in 1962 when the wife was 10 years old in circumstances which will be considered in more detail at a later stage With the exception of two periods in 1963 and 1964 she has resided in Ireland since then On the 19th July 1976 the wife was married in Ireland to W S who was subsequently joined as a notice party in the nullity proceedings and will henceforth be so described according to the rites of the Church of Ireland He was born on November 10th 1949 in West Germany and arrived in Ireland in 1955 with his parents Apart from a period spent in West Germany of approximately 10 months in 1971 he has resided in this jurisdiction since his arrival in 1955 and in 1967 became an Irish citizen On the 13th March 1985 the District Court of Schoneberg Brandenberg Germany on the petition of the wife which was not contested by the notice party dissolved the marriage entered into between them On the 31st October 1986 the wife was married to the husband in a civil ceremony at Bad Nauheim in West Germany The husband is an Irish citizen whose domicile it is agreed has always been Irish The ground on which the decree of nullity was granted by the learned High Court judge was that the decree of dissolution of the marriage between the wife and the notice party granted by the German court was not capable of being recognised in Irish law since as it was held neither of the parties was domiciled in Germany at the time it was granted and that accordingly the marriage entered into in Bad Nauheim between the husband and the wife was not a valid marriage in Irish law There were two children of the marriage Ro born on the 19th February 1981 and Ru born on the 4th December 1987 Unhappy differences arose between the husband and wife which resulted in these three sets of proceedings It is convenient first to set out the history of the proceedings in the High Court and the submissions of the parties as to the issue of fair procedures generally The Proceedings in the High Court When the petition in the nullity proceedings was served on the wife an appearance was entered on her behalf On the 22nd March 1999 a notice of change of solicitors was filed on her behalf and the new solicitors instructed senior and junior counsel to act for her On the 11th June 1999 the proceedings were listed for hearing in the High Court on the 6th December 1999 together with the proceedings under the Guardianship of Infants Act 1964 and the proceedings issued pursuant to the Family Home Protection Act 1976 and the Domestic Violence Act 1996 Thereafter the proceedings were adjourned from time to time principally it would seem because it was stated on behalf of the wife that she was not well enough to attend court Difficulties also arose because of the unavailability of a judge to hear the proceedings The nullity proceedings ultimately came on for hearing before Lavan J on the 21st June when the wife was represented by the same senior and junior counsel On that day and the following day the court heard evidence from the notice party who was cross examined by senior counsel on behalf of the wife On the following day the court heard evidence from a German lawyer as to the jurisdiction of the German court to grant the divorce and also from Ms C M a sister of the wife At the end of that day s hearing the learned trial judge indicated that the notice party who had not at that stage been joined in the proceedings should be made a party The further hearing was then adjourned to enable the notice party to consider the extent if any to which he wished to participate in the proceedings They came before the High Court for mention again on the 18th July 2000 and 13th September 2000 on both occasions the wife was represented by the same senior and junior counsel On 16th October 2000 the husband s solicitors were informed by another firm of solicitors that they had been instructed to act on behalf of the wife On the 23rd October 2000 the proceedings came before Lavan J again for mention on which day he said that all three sets of proceedings would now be listed for 18th December in order to enable them to be concluded It should be pointed out in passing that other proceedings which are not the subject of this appeal were also before the High Court at that time which had been instituted by the wife against the husband claiming a judicial separation and that in respect of those proceedings alone a notice of change of solicitors was filed on the 9th November 2000 by the solicitors now acting for the wife Those proceedings were adjourned generally by consent pending the determination of the nullity proceedings On 1st December 2000 a member of the firm of solicitors now acting on behalf of the wife applied to Lavan J for an adjournment of the three sets of proceedings listed for hearing on the 18th December on the ground that the papers in the case had not been transmitted to them by the former solicitors which application was refused The hearing of the case accordingly began before Lavan J on the 18th December There was no stenographer s transcript available of what transpired before the learned trial judge commenced hearing evidence but a memorandum of what happened was agreed between the parties and was available to this court Mr Eoin McGonigal SC told the court that the papers from the former solicitors had only been received by the solicitors now acting on the 15th December He said that he had studied the papers over the weekend but had only met his client that morning and was not in a position properly to deal with the case or fully to advise his client He accordingly applied for a further adjournment and for the fixing of a new date for them to be heard He was informed by the learned trial judge that the case would have to proceed that morning Mr McGonigal said that the solicitors who had been acting were insisting on the discharge of their costs in the sum of 200 000 before they would release the papers In response to a query from him the trial judge was then informed that the solicitors now appearing had been consulted in early October The trial judge pointed out that no notice of change of solicitors had been served in any of the proceedings before him and that he was concerned by the fact that the former solicitors were still the solicitors on record in the case He indicated to Mr McGonigal that while he was not intending to reflect in any way on the latter s professional conduct a question arose as to whether he had l ocus standi to appear in the case He also said that he was very concerned with the situation having regard to the nature of the case its importance to the parties and the fact that he himself had spent a considerable time some five hours reading the papers and acquainting himself with it The trial judge said that he was particularly concerned with the wife s situation and understood her difficulties Mr McGonigal said that the case had to be given further consideration by him at this stage and that it might be that some of the witnesses who had already given evidence would have to be recalled He emphasised however that he was not in a position to deal with the case that morning The trial judge having again expressed concern as to the locus standi of the lawyers now appearing for the wife asked Mr Alan Shatter solicitor who was appearing for the husband when he had first heard from the new solicitors about the application for an adjournment Mr Shatter said that on the 16th October 2000 he had been informed by those solicitors that they were going to represent the wife However he said that the first time he was aware that there was going to be an application to adjourn the proceedings was when the application was made by Mr McGonigal that morning Mr Shatter went on to summarise the sequence of events already recorded in this judgment and said that matters had reached the stage where it was reasonable to conclude that the wife was abusing the court process Mr Shatter said that provided the case went on that day he was happy to accept an undertaking from the new solicitors to file notices of change of solicitor The trial judge then said that if the adjournment were to be granted it would have to be on stringent conditions i e that the costs of all the proceedings to date would be the responsibility of the wife In the alternative the wife could proceed on her own without representation The trial judge then said that he would rise for approximately ten minutes and would hear what the wife had to say herself Mr McGonigal having expressed concern as to the unprotected position in which that would place the wife the trial judge observed that the current circumstances were of her making When the court reconvened after ten minutes the trial judge requested the wife to enter the witness box Thereafter a transcript of the evidence was available The wife having been sworn she confirmed that she was seeking an adjournment of the case and was asked by the trial judge as to when she had decided to change solicitors and said that it had been sometime in September She said that she had not received any advice as to the wisdom or otherwise of changing her lawyers in the middle of a case When asked whether she would conduct the case herself she said that it was too complex for her to do that Cross examined by Mr Shatter she agreed that this was the third set of lawyers whom she had chosen to represent her The wife having left the witness box the trial judge then addressed her as follows The options are it seems to me to proceed with the case and you can represent yourself You have indicated clearly that you were dissatisfied with the two teams and you now have a third team you are embarrassed by the fact that procedurally they are not before the court I am aware of the history and aware of the fact that the case was to be heard on 6th December 1999 The difficulty that your application creates for the court is obvious There are thousands of people wanting to get their cases tried and to get a date The options are that I adjourn with costs thrown away and with a peremptory listing noting that I cannot make it peremptory because I cannot anticipate problems that might arise in the future or I can proceed with the case you being without legal representation Do you understand that Mrs B Mrs B Yes Judge You are the person who has taken all the decisions that have left the court in this predicament You are the person carrying the responsibility I can adjourn with costs thrown away on a peremptory basis or I can proceed I will have to hear Mr Shatter now Is there any alternative to me Mr Shatter then indicated to the trial judge that his preference would be to proceed that day The trial judge then said he would give the wife the opportunity of speaking to her counsel and solicitors so that they could explain to her the significance of what he had been saying and pointed out that he was talking about formidable costs He said that the option was that he adjourned the case on the basis of all costs incurred to date by the husband and no order in relation to the wife s costs incurred to date While he indicated that he would be prepared to discharge himself from the case and put it in for the next available list he acceded to an application by Mr Shatter that he should retain seisin of the case since he had already heard two days evidence The trial judge was then informed by Mr McGonigal that the wife was going on with the case on her own The trial judge then heard evidence from the husband So much of his evidence as related to the nullity proceedings will be referred to in more detail at a later point At this stage it is sufficient to note that when his direct evidence concluded the trial judge informed the wife that she had the right to cross examine her husband on the evidence he had given The transcript continued as follows Trial Judge Now Mrs B you have the right to cross examine your husband on the evidence that he has given Mrs B My Lord I don t accept and I don t agree with a lot of what my husband has said However I am here put in a position by the court where I have no legal representation Trial Judge No please don t special plea this court You are placed in a position you yourself have created I can understand you challenge his evidence I will accept that and you can then give me your own evidence Is there any specific point you wish to put to him Mrs B Without my legal representation I am not in a position to do this I am not a lawyer I am a mother Trial Judge Speeches are not permitted on cross examination if you have questions to put to the witness you may put them otherwise you can give me your evidence in due course Mrs B I am not able to cross examine the witness I am just not able to Trial Judge Very well The wife then gave evidence and said at the outset I have never done this before and I might require some guidance in the matter from your lordship She then proceeded to give evidence as to here early life At an early point in her cross examination the trial judge intervened by asking her questions which were clearly relevant to the issue as to domicile which arose in the proceedings I think it is a reasonable summary of the questions which he asked that they were those which would have been put to her in the normal way during her direct examination although it is right to say that he reminded her at one point that she should not be making speeches to the court at this point in the case At the end of her evidence the trial judge said that he would rise for twenty minutes in order to enable the wife to ascertain whether she had any papers relating to three issues which she had referred to in the course of her evidence relating to her marriage to the husband On being recalled she furnished the trial judge with some documents and then called her mother Mrs J S to give evidence As in the case of the wife much

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  • constitute exceptional cases in which the State is under a duty to ensure that that their right to such treatment is upheld Locus Standi The law in general requires that a person who seeks to challenge the validity of laws passed by the Oireachtas or actions or omissions of the executive demonstrates that a particular right which he she enjoys is threatened or endangered by the alleged invalidity he she cannot rely on the fact if it be the fact that the invalidity will have that effect on the rights of others although not on his hers See the decisions of this court in Cahill v Sutton King v Attorney General Madigan v Attorney Genera l and Mhic Mhathuna v Attorney General That general principle however must on occasions yield to the overriding necessity that laws passed by the Oireachtas or acts and omissions of the executive should not go unchallenged simply because it is difficult if not impossible for individual citizens or groups to establish that their individual rights are affected Thus in cases where legislation affected all the citizens in the same manner as in the case of the electoral laws challenged in O Donovan v Attorney General the State s becoming a party to the European Single Act in Crotty v An Taoiseach or the expenditure of money for an allegedly unlawful purpose by the Oireachtas and executive during a referendum campaign McKenna No 2 v An Taoiseach the courts have afforded locus standi to persons whose bona fide concerns were not in doubt but who could not demonstrate that their individual rights or interests were particularly affected In the present case it is clear that having regard to their respective ages some of the applicants will derive no conceivable benefit from the order granted by the High Court Indeed since all of them are in the catchment area of the Eastern Health Board and the units to be provided on foot of the order are without exception situated outside that area it is difficult to see what benefit will accrue to any of them from the provision of these units While it may be that a general improvement in the provision of facilities on a national basis would ensure that the facilities available in the Eastern Health Board area were not being used to meet any deficiencies in other areas and that in that indirect manner children in need of facilities including the applicants might derive some benefit from their provision the fact remains that as the evidence clearly demonstrated the damage was already done in the case of the applicants by the undoubted failure of the State to deal adequately with this problem in the past However I am satisfied that the submission advanced on behalf of the applicants that these considerations are relevant to the form of relief to which the applicants might be entitled rather than to their locus standi or lack of it is well founded They have undoubtedly been affected by the failure on the part of the state agencies to meet their particular needs and that of itself would appear to me to afford them locus standi in these proceedings I do not think that their position can be equated to that of the plaintiffs in Cahill v Sutton King Madigan and Mhic Mhathuna In each of those cases the plaintiffs were held to be precluded from questioning the constitutional validity of parts of the legislation under consideration which did not in any way affect their personal circumstances In this case the applicants are all persons who were held by the High Court to have been entitled to the provision of appropriate facilities which were in fact not provided to them and from which they would have benefited and it is clear from the evidence that that was a finding which the trial judge was entitled to make It may be that in some of the cases the granting of the relief sought would not in any way redress the breach of their rights which has already taken place and in other cases would at best have a peripheral effect only so far as they were concerned But as persons affected by the failure of the Ministers to uphold their constitutional rights I am satisfied that they have sufficient l ocus standi to raise the more general issue of public importance as to the nature of the remedy available in such cases The Separation of Powers In Buckley v Attorney General 1948 IR 3 O Byrne J speaking for the former Supreme Court said that The manifest object of Article 6 of the Constitution was to recognise and ordain that in this State all powers of Government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative executive and judicial organs of the State and to require that these powers should not be exercised otherwise The subsequent articles are designed to carry into effect this distribution of powers In Boland v An Taoiseach Griffin J referred to Article 6 and other articles and said that In my view these articles demonstrate that the Oireachtas and the Oireachtas alone can exercise the legislative power of the Government that the Government and the Government alone can exercise the executive power of Government and that the judicial power of Government can be exercised only by judges duly appointed under the Constitution in courts established by law under the Constitution Article 28 2 provides that The executive power of the State shall subject to the provisions of this Constitution be exercised by or on the authority of the Government The Ministers in the present case in determining that particular resources should be allocated to the building and staffing of the units which are now the subject of the order were beyond argument exercising the executive power of the State on behalf of the Government as a whole The monies required to provide and staff the units can only be made available to the Ministers by Dail Eireann under the appropriation machinery prescribed under Article 17 2 and then only on the recommendation of the Government If it was established in any proceedings that the Government had acted in a manner which is in contravention of the Constitution then the exclusive role afforded to them in the exercise of the executive power of the State would not prevent the courts from intervening with a view to securing compliance by the Government with the requirements of the Constitution It is however not in dispute that the orders made by the trial judge in this case and in the earlier case of D B are without precedent in that they not merely find the executive to have been in breach of their constitutional duties they also require the executive power of the State to be implemented in a specific manner by the expenditure of money on defined objects within particular time limits No precedent has been cited for so far reaching an assumption by the courts of what is prima facie at least the exclusive role of the executive and the legislature It is noteworthy that in F M v The Minister for Education and Others Geoghegan J not merely afforded no relief of that nature he also refrained from granting any declaration that the respondents had failed to protect and vindicate the applicants constitutional rights until the State had been given an opportunity to make suitable arrangements for the accommodation of the applicant It would appear from the judgment of Kelly J in D B that such declarations have been granted in other cases but that was the first instance of an order having been granted by the High Court directing a Minister to ensure the provision of particular facilities within a specified time In a case of D D v The Eastern Health Board and Others U R Judgment delivered 3rd May 1995 Costello J ordered the Board to care for and accommodate the applicant until further order in a unit or institution managed by it and to arrange for the provision of suitable education and therapeutic care for him either in that unit or elsewhere While mandatory injunctive relief of that nature is undoubtedly unusual it was apparent from the judgment that the parties were agreed that the court had jurisdiction to make whatever order it considered appropriate in the interests of the applicant The judgment cannot in my view be regarded as authority for the proposition that the court was entitled to make the order which it did in the present case In Sinnott v The Minister for Education and Others U R Judgments delivered the 12th July 2001 this court set aside an order of the High Court which prescribed in detail the nature of the primary education and training which the plaintiff in that case was to receive Since in that case a majority of the court held that the plaintiff was not entitled as a matter of constitutional right to the particular education and training beyond the age of 18 which was at issue in that case it was not found necessary by them to determine whether an order in that form was consistent with the distribution of powers between the different arms of government under the Constitution In my dissenting judgment in that case however I expressed the view that it was not so consistent and I agreed with the detailed analysis carried out by Hardiman J in his judgment of the issue In particular the following passage from his judgment in that case is worth recalling the constitutionally mandated separation of powers is a vital constituent of the sovereign independent republican and democratic State envisaged by the Constitution It is not a mere administrative arrangement it is itself a high constitutional value It exists to prevent the accumulation of excessive power in any one of the organs of Government or its members and to allow each to check and balance the others It is an essential part of the democratic procedures of the State not inferior in importance to any article of the Constitution Both the High Court and this court have stressed on more than one occasion that where the Oireachtas or the executive are found whether by act or omission to have acted in a manner which violates the Constitution they are entitled to expect that the other responsible arms of Government will take such steps as are necessary to redress the wrongs in question Thus in McMenemin v Ireland this court found that due to changing circumstances the operation of certain statutory provisions had led to an unjust and inequitable result where the pension entitlements of a district judge were concerned The court however set aside the finding in the High Court that the plaintiff was entitled to a declaration to that effect In the course of his judgment Hamilton C J said This situation requires to be remedied by the Oireachtas in accordance with the provisions of Article 35 and 36 of the Constitution because the present situation has led to an unjust and inequitable result whereby the applicant has suffered loss whether by way of excessive reduction in his pension or the payment of an inadequate lump sum by way of gratuity The manner in which this situation is remedied is a matter for the Oireachtas and it is not open to this court to interfere with the manner in which this situation is dealt with by the Oireachtas unless the Oireachtas fails to have regard to its constitutional obligations in this regard and this court must assume at this stage that the Oireachtas will have regard to such obligations I do not propose to make a declaration giving effect to my views because having regard to the respect which the separate organs of Government the legislature the Government and the judiciary have traditionally shown to each other I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice it will take the necessary steps to have the matter remedied in accordance with law and in accordance with its constitutional obligations In the present case of course it is clear that following the decision in F M the executive unhappily did not take the necessary steps to remedy the constitutional injustice which that decision had found to exist Accordingly it was understandable that in subsequent cases the High Court should have found it necessary to take the further step of granting a declaration that the executive were in breach of their constitutional duty to applicants in specific cases The issue in this case is as to whether the court was also entitled to make an order specifying in detail the manner in which they were to carry out their functions so as to remedy the breach I am satisfied that the granting of an order of this nature is inconsistent with the distribution of powers between the legislative executive and judicial arms of Government mandated by the Constitution It follows that as a matter of principle it should not have been granted by the trial judge however much one may sympathise with his obvious concern and exasperation at the manner in which this problem had been addressed at the legislative and executive level It is of fundamental importance that each of the organs of Government should not only carry out the duties imposed on it by the Constitution but should recognise as Finlay C J pointed out in Crotty that the Constitution also defines the boundaries within which they are confined in carrying out their functions The difficulty created by the order of the High Court in this case is not simply that it offends in principle against the doctrine of the separation of powers though I have no doubt that it does It also involves the High Court in effectively determining the policy which the executive are to follow in dealing with a particular social problem This difficulty is not met by the contention advanced on behalf of the applicants that the Ministers are being asked to do no more than carry into effect a programme prepared by them and which they assert it is their intention to implement The evidence in this case establishes clearly that in what is unarguably an extremely difficult area approaches which at one time seemed appropriate may have to be reconsidered in particular officials are naturally concerned with how equivalent problems are being dealt with in other countries There is no reason in principle why the executive should not adopt a flexible and open minded approach to the problems of children with special needs while at the same time ensuring that their constitutional right to have those needs met is respected The making of the High Court order in this form as the judgment of the trial judge emphasises will make it necessary for the Minister to return to the High Court to obtain its sanction to any change in policy which necessitates a departure from the precise terms of the order It cannot be right that the executive power of the Government can only be exercised in a particular manner even though so to do would not contravene any person s constitutional rights without the sanction of the High Court This it should be emphasised is not a case in which it is contended on behalf of the State that the facilities in question cannot be provided by them because the resources are not available to the State As Costello J as he then was pointed out in O Reilly v Limerick Corporation 1989 ILRM 181 it is not the function of the courts to make an assessment of the validity of the many competing claims on national resources as he said in exercising that function the court would not be administering justice in the normal sense but would be engaged in an entirely different exercise i e an adjudication on the fairness or otherwise of the manner in which other organs of State had administered public resources In this case the State acknowledge that the resources are available but take issue with what they say is the assumption by the courts of the role of the executive in determining how best the resources admittably available should be applied in achieving the agreed result i e the vindication of the children s constitutional rights I find the conclusion inescapable that since the High Court first began the difficult task of grappling with this problem a Rubicon has been crossed clearly from the best of motives in which it is moving to undertake a role which is conferred by the Constitution on the other organs of State who are also entrusted with the resources necessary to discharge that role in the interests of the common good Conclusion I would allow the appeal and discharge the injunction granted by the High Court APPENDIX a Two six bedded high support units with ancillary educational facilities at Castleblaney in the County of Monaghan on or before the 31st December 2001 b A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000 c A five bed high support unit at Elm House in the County of Limerick on or before the 31st October 2000 d A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001 e A five bed high support unit in the County of Clare on or before the 31st July 2001 f A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001 g An additional high support place in the Waterford region on or before the 31st May 2000 h An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000 i An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000 j A five bed high support unit for boys in the Southern Health Board region on or before the 31st August 2001 THE SUPREME COURT KEANE C J DENHAM J MURPHY J MURRAY J HARDIMAN J 203 00 BETWEEN T D A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M D APPLICANT AND THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL THE EASTERN HEALTH BOARD AND BY ORDER OF THE MINISTER FOR HEALTH AND CHILDREN RESPONDENTS BETWEEN D B A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S B APPLICANT AND MINISTER FOR JUSTICE MINISTER FOR HEALTH MINISTER OF EDUCATION IRELAND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD RESPONDENTS BETWEEN M B A MINOR SUING BY HER MOTHER AND NEXT FRIEND M B APPLICANT AND MINISTER FOR EDUCATION IRELAND THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD RESPONDENTS BETWEEN G D A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND K O D APPLICANT AND EASTERN HEALTH BOARD MINISTER FOR EDUCATION AND SCIENCE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS BETWEEN G D A MINOR SUING BY HIS FATHER AND NEXT FRIEND A D APPLICANT AND EASTERN HEALTH BOARD MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL RESPONDENTS BETWEEN P H A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R F APPLICANT AND EASTERN HEALTH BOARD MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL RESPONDENTS BETWEEN B J A MINOR SUING BY HIS GUARDIAN AD LITEM R F APPLICANT AND EASTERN HEALTH BOARD MINISTER FOR EDUCATION AND SCIENCE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS BETWEEN T L A MINOR SUING BY HER GUARDIAN AD LITEM C O D APPLICANT AND EASTERN HEALTH BOARD MINISTER FOR EDUCATION MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS BETWEEN S T A MINOR SUING BY HIS MOTHER AND NEXT FRIEND D T APPLICANT AND MINISTER FOR EDUCATION AND SCIENCE IRELAND THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD RESPONDENTS JUDGMENT delivered the 17th day of December 2001 by Keane C J 1 Introduction The appeal to this court in these cases comes at the end of a lengthy sequence of such cases in the High Court where the court has been asked to ensure that the State discharges what is claimed to be its constitutional obligation to provide for the accommodation needs of children with particular problems The order appealed against requires the first and fifth named respondents in the first entitled proceedings hereafter The Ministers in relation to all the aforesaid entitled proceedings to take all steps necessary to facilitate the building and opening of secure and high support units in places as follows There follows a list of ten high support or special care units which under the terms of the order are to be built and opened by specified dates in different parts of the State A list of the units so specified will be found in the Appendix to this judgment The order was made on the 25th of February 2000 for the reasons set out in the reserved judgment delivered on that day by Kelly J Since the judgment and order has its origins in the first of the cases in the title T D it is convenient to set out the facts of that case at the outset The applicant was born on the 9th January 1983 and is accordingly now aged eighteen At the date of the judgment and order in the High Court he was aged seventeen He began his educational career in Goldenbridge National Schools Dublin and in 1990 was enrolled in the Phoenix Park Special School for pupils with emotional disturbance and attended there for one year He was then placed in Warrenstown House an Eastern Health Board residential unit which also provided educational facilities from May 1991 to September 1992 He attended St Laurence O Toole Special School until June 1995 but did not return in September as it was alleged that he was being bullied by other pupils On the 19th November 1996 the District Court made an order pursuant to S 58 4 of the Children Act 1908 hereafter the 1908 Act as a result of which he was placed in St Laurence s Finglas Dublin Thereafter he was placed in a number of different institutions At the date of the hearing in the High Court he was living with his parents in Inchicore A report from Dr Gerard Byrne a consultant psychiatrist dated 30th November 1998 stated that T needs to be placed in an environment with a high staff ratio where he can learn better controls in the context of forming attachments to staff who care for him He does not need a secure unit and indeed I think a secure unit is contraindicated A secure unit is likely to place him in contact with a far more delinquent peer group Given his difficulties with impulse control and general immaturity such a setting would cause a deterioration in his general state Proceedings were commenced by way of judicial review in the High Court The relief sought included inter alia an order of mandamus directing the respondents to provide for appropriate education suitable to the needs of the applicant in a suitable educational establishment The matter appears to have come before the learned trial judge for the first time on the 5th November 1998 at which stage T D was being detained in Oberstown Boys Centre It was ordered that that should continue until further order and that the matter should be listed for review by the court on 1st December 1998 On 4th December 1998 the court directed that specified information should be placed before the court not later than the 27th January 1999 this related to the provision by the state agencies of particular facilities and the time within which those facilities would be provided The further hearing was then adjourned until 29th January 1999 It appears to have been adjourned again until the 16th March 1999 when T D was ordered to be arrested and detained in St Patrick s Institution until further order The matter came before the court on the 26th March and was adjourned again until the 26th April Ultimately on the 11th October 1999 the case was adjourned generally with liberty to re enter These comparatively lengthy adjournments were given by the trial judge with the agreement of the appellants respondents so that they could place before the court evidence as to the progress being made by the appellants respondents in the provision of facilities for children in the position of T D However when the matter came before the High Court again on the 16th December 1999 and evidence was given by officials as to these matters it was also pointed out on behalf of the appellants respondents that given the age of T D the proceedings were effectively moot as far as he was concerned At that stage there were a number of other applications pending before the High Court which also arose out of the lack of appropriate residential facilities for children in the same position as T D The trial judge indicated the approach he was adopting as follows In principle it seems to me that the applicants are entitled to injunctive relief but I am not going to make a final decision on that until I have heard further submissions What I am going to do is permit the applicant to set down a notice of motion not merely in the T D proceedings but in all of the proceedings one single motion which can be entitled in all of the proceedings so a technical objection taken by the Minister can no longer have any effect That motion can be set down for early next term in which you can spell out with precision injunctive relief What I have in mind is that you will seek injunctions which will accord precisely with what has been put before me by way of oral evidence from the Department of Health concerning a the facilities that are to be provided and b the time in which such facilities are to be provided I am not interfering in departmental policy I am merely taking steps to ensure that if such an injunction is granted having heard further submissions from counsel on all sides that if such an injunction is granted it will simply mean that the departmental word will be its bond insofar as this court is concerned and that if there is to be a further departure from the time scale that has been given to me it can only be brought about on application to this court It will also mean that I will be fully apprised of all the developments As I said in D B a variation of the time scale chosen by the Department given the sworn testimony by the Department will not be departed from save for various strong and cogent reasons The reference to D B is to a decision of the trial judge reported sub nom DB v Minister for Justice 1999 1IR 29 In accordance with the approach thus indicated a notice of motion was served on behalf of T D and the eight minors named as applicants in the other proceedings claiming an injunction directing the Ministers to take all the steps necessary to facilitate the building and opening of the secure and high support units in the places specified in the Appendix On the hearing of this application further oral evidence was adduced on behalf of the Ministers confirming earlier evidence that the units and places would be provided within the time limits specified in the Appendix The trial judge also heard submissions on behalf of the applicants and the respondents it was made clear on behalf of the Ministers that they were not prepared to give an undertaking to the court that the units and places would be provided within the time scale specified Before considering the reserved judgment delivered by the trial judge on the 25th February 2000 the legal and factual context in which he gave that judgment must be referred to in more detail The Legal Background The sequence of events which culminated in the judgment and order under appeal began with the decision of the High Court Geoghegan J in FM v The Minister for Education Ors 1995 1 IR409 The applicant in that case was a twelve year old child whose father was unknown and whose mother dead at the time of the application had had no contact with him since an early age After he had spent a period of time with foster parents the Eastern Health Board obtained an order under S 58 4 of the 1908 Act which empowers the District Court on the application of a guardian parent or fit person who is unable to control a child and who understands the consequences of an order under the subsection to order the child to be sent to a certified industrial school named in the order Following the obtaining of that order the Eastern Health Board subsequently provided various types of accommodation for him He was ultimately diagnosed as suffering from what was described as a hyperkinetic conduct disorder by a consultant psychiatrist who recommended that he should spend a period of time in a secure unit which could contain him safely while addressing his behaviour On the application of the Eastern Health Board an order was made under S 58 4 of the 1908 Act however the managers of the industrial school named in the order St Joseph s in Clonmel were not willing to take him The managers of the only other certified industrial school in the country at that time St Laurence s in Finglas were also not prepared to take him In the course of his judgment Geoghegan J pointed out that at the time of the passing of the 1908 Act there were a large number of certified industrial schools the list of which is to be found in O Connor s The Irish Justice of the Peac e volume 2 p 162 The applicant was then given leave by the High Court to apply for relief by way of judicial review in the form of a declaration that the respondents to the application The Ministers Ireland and the Attorney General had failed to protect and vindicate the applicants constitutional rights under Articles 40 3 and 42 of the Constitution and an order of mandamus directing the respondents to protect and vindicate the constitutional rights of the Applicant by inter alia a providing forthwith secure accommodation for the Applicant b providing forthwith for the religious and moral intellectual physical and social education of the Applicant The circumstances in which that application came before the court are not entirely clear As already noted the applicant s father was unknown and his mother was dead He is described as suing by his next friend M H but there is no indication as to the relationship between the next friend and the applicant The Eastern Health Board are described in the judgment as the guardian of the applicant but I assume that this is because one of the legal consequences of the making of a fit person order was that the person concerned enjoyed the same control over the child as its parent or guardian would have enjoyed in the absence of such an order The Eastern Health Board were joined as notice parties and a statement of opposition having presumably been filed on behalf of the respondents the substantive hearing came on before Geoghegan J In the meantime a place had become available for the applicant in an institution called Glen House which was not a certified industrial school but was a health board institution for housing more difficult children Counsel for the Eastern Health Board indicated to the court that his clients as the persons having control of the applicant under the fit person order were satisfied that the appropriate course was for the applicant to be accommodated there at least for the time being However counsel for the applicant objected to that course of action being taken on both legal and factual grounds In the first place he submitted that the Health Board having applied to the District Court under S 58 4 of the 1908 Act were now functus officio and that the matter is in the hands of the District Court The trial judge rejected this submission pointing out that the District Court had no jurisdiction to order the applicant to be sent to any particular certified industrial school without first ascertaining that the manager was prepared to take him as was made clear by S 62 1 of the Act Consequently he took the view that the health board continued to be responsible for the child and was entitled to place the child in such institution as it thought fit subject to his legal and constitutional rights The Glen House proposal was also opposed by counsel for the applicant on a number of grounds i e that the actual physical building was unsuitable that there would be other children there who would have criminal tendencies that the staffing would be inadequate and that it did not comply with the requirements of containment for treatment indicated by the medical witnesses However while the trial judge was satisfied that these criticisms were to some extent well founded he considered that as a temporary solution at least the applicant should go to Glen House On one view that should have been enough to dispose of the case since the Health Board the body in control of the child in the absence of a parent or guardian was satisfied that accommodation appropriate to his needs at least for the time being was available in Glen House If the parents of F M had been parties to the proceedings and had told the court that they were in agreement with the view of the Health Board that the child should be accommodated at least for the time being in Glen House it is difficult to imagine that the court would have given any weight to objections from any other party and the Health Board were of course in the same position in legal terms as the parents It was however submitted on behalf of the Ministers and the other respondents that there was no constitutional obligation on the State to provide services beyond what was at present available so as to cater for the particular needs of a person in a position of the applicant The trial judge rejected that contention saying that he was satisfied that in the case of children with very special needs which could not be provided by their parents or guardians there was a constitutional obligation on the State to cater for those needs in order to vindicate the constitutional rights of the child He went on It would seem to me that on the balance of probabilities the provision of such necessary accommodation arrangements and services by the State as might meet the necessary requirements of this applicant is not so unpractical or so prohibitively expensive as would come within any notional limit on the State s constitutional obligations There may be differences of opinion among the experts as to the level of staffing arrangements which would be required even on a temporary basis for the proper care of F M but I am not convinced at present that even the more extreme view taken by Dr Byrne as to staff ratio is prohibitively expensive He has given evidence that similar facilities are available in Canada and other countries I would have thought that

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  • children will be best met by places in secure high support units c This case is grounded fundamentally on Article 42 5 of the Constitution Thus it is grounded on concepts including education and the common good The right to education is a specially acknowledged right under the Constitution The common good is a collective concept to be advanced by the State through each of its institutions which include the respondents and the courts Thus the case has a firm constitutional grounding d The applicants each have constitutional rights which were not contested e These rights were described in the F N case There was no challenge at the hearing of this appeal to the decision in F N f The applicants are children This raised at least two fundamental matters of importance i the court has a duty to ensure that the process enabled the children s rights be protected ii the nature of the constitutional rights in issue meant that time was of the essence g There had been culpable delay by the respondents h Delay is an important factor in light of the nature of the rights being protected and the age of the applicants and the effect of not vindicating the rights during the children s youth Damages at a later state would not be an adequate remedy i For some considerable time the judge had been in charge of the list of cases of children including the applicants and others who were seeking to have their constitutional rights to high support places protected He had an extensive knowledge of all the cases j The judge with the support of all parties heard evidence of the plans of the relevant bodies for the respondents All parties participated willingly in setting out for the judge the plans of the respondents for establishing relevant facilities k Counsel for the applicants did not process their cases in light of the evidence of the respondents of their plans and the expectation that the plans would be implemented Thus the applicants altered their position in not proceeding with their proceedings This alteration was to their detriment l The respondents fully informed the court of their plans which plans the court accepted as being appropriate in the circumstances As a consequence the respondents had the benefit of considerable lengthy adjournments and the absence of litigation individually by each applicant and others seeking individual orders relating to their constitutional rights and obligations The respondents benefited from their actions and the actions of the applicants m The learned trial judge after the culpable delay suggested that the matter proceed by way of motion for an injunction n The order of the court was to enforce the policy of the executive It was not a situation where the court investigated the basis for a policy or established a policy The policy being enforced was that of the executive with the right to apply to vary It was a policy consistent with previously recognised constitutional rights and the obligations of the State as a whole 5 B vii Exceptionalism This case includes the concept of exceptionalism This term has been used to describe cases which include exceptional circumstances which call for an exceptional decision The Constitution specifically refers to exceptional cases indeed it does so in an article most relevant to this case Article 42 5 states In exceptional cases where the parents for physical or moral reasons fail in their duty towards their children 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 The term exceptional has a clear meaning The Concise Oxford Dictionary 8th Edition describes the term as 1 forming an exception 2 unusual not typical exceptional circumstances 3 unusually good outstanding I am satisfied that in the Constitution the term exceptional means forming an exception unusual not typical being exceptional circumstances Thus the Constitution specifically recognises exceptional cases and that in such exceptional cases decisions of an exceptional nature may be made Indeed this concept is at the root of the concept of justice itself where a decision is sought that is just for the parties involved 5 B viii A Balance In determining this matter a harmonious balance of the rights and duties of all the parties is sought In the exceptional circumstances of this case the constitutional rights obligations and principles must be weighed in the balance In the rare and unusual circumstances of this case where each individual has rights and the respondents have obligations the fact that the cases proceeded by way of a type of group action for the mandatory injunction relating to the buildings rather than a series of individual orders for individual places in such buildings has meant that the respondents have now sought a decision on the balance to be achieved as between constitutional obligations and duties on the one hand as against the enforcement of a doctrine the separation of powers The Constitution established the special duty of the courts to protect fundamental rights and the Constitution This duty a relatively advanced concept in 1937 is now a duty commonly found in constitutions of democratic states The court has a right and indeed a duty to make a mandatory order in certain circumstances if there has been a breach of the Constitution if an obligation has been evaded if constitutional rights are being set at nought I am of the opinion that it would have been an abdication of judicial duty to continue to adjourn the applicants cases on a chimera of plans This left the High Court in a position whereby it could make individual orders for each of the applicants Such an approach it is agreed would not have been contrary to the doctrine of the separation of powers Instead the High Court took the collective approach herein which is the matter at issue 5 B ix Judicial Adjudication The court is a judicial decision maker It does not plan issues for decision It has no choice over the issues upon which it is called upon to make decisions Cases are brought to court and they set the court s agenda Further a decision has to be made The matter cannot be sent to another body for consideration for a report etc A court adjudication is of its nature a different type of decision to that made in the legislature or the executive The decision is made within the Constitution and the law which form the parameters of the adjudication In seeking the decision the court may be in a situation where the decision is clearly indicated there is a single possibility Often however especially in relation to issues of rights there are conflicting rights to be weighed and a proportionate and balanced decision sought Such a decision involves the exercise of judicial discretion within the parameters of the Constitution to achieve a just decision Under the Constitution such a decision is required of the superior courts 5 B x Judicial Discretion and Democracy The judiciary are the third branch of government in the democratic Irish State The Constitution did not establish a structure of government with a rigid separation of powers It incorporated a doctrine of the separation of powers and a system of checks and balances by one branch of government of another The role of the superior courts in relation to the judicial review of legislation to review its constitutionality was specifically incorporated in the Constitution It was a sophisticated step taken by the people in 1937 to incorporate such a system of judicial review Previously Ireland had been governed by the Westminster model the simple parliamentary sovereignty democratic majority system where parliament was supreme and the courts did not have such power of constitutional judicial review Subsequently Westminster has been changed somewhat by the introduction of the Human Rights Act 1998 However it has not espoused judicial review as introduced to Ireland in the Constitution of Ireland 1937 In 1937 Ireland did not favour the Westminster model Rather an approach was taken more similar to that of the United States of America As a consequence of this approach the High and Supreme Courts of Ireland were given the Constitutional duty of judicial review The courts were made guardians of the Constitution The 1937 Constitution and the judicial review element is in keeping with a modern democratic state where there are important elements to protect being of the democratic majority fundamental rights and the rule of law The function of the courts in protecting fundamental rights and the rule of law is part of the balance within a modern constitution By including such a balance the democratic values fundamental rights and the rule of law are protected The ultimate decision maker is neither a majority of representatives elected in the executive or the legislature nor the judges but the people in a referendum By such a system the fundamental rights and the rule of law are protected Under the Constitution powers are given to each branch of government The three branches legislative executive and judicial have powers which are limited which are subject to checks and balances Constitutional government is limited government The separation of powers is an important aspect of the Constitution However in addition to that doctrine there is the jurisdiction of the courts to protect fundamental rights This is not only a jurisdiction but a duty and obligation of the courts under the Constitution The Constitution of Ireland 1937 presciently heralded in the post World War II democratic constitutions of many countries which include judicial protection of fundamental rights by judicial review The Constitution of Ireland 1937 set out fundamental rights yet it predated the U N Declaration of Human Rights and the European Convention on Human Rights The Constitution of Ireland 1937 included the duty of judicial review for the superior courts as part of the scheme to protect fundamental rights and the rule of law This model is now being developed across Europe and the common law world An apt description of the part played by superior courts in countries with modern constitutions democracy the rule of law fundamental rights and judicial review has been given by Chief Justice Barak of Israel The place of judicial review and democracy was analysed by the Israeli Supreme Court in United Mizrahi Bank Ltd v Migdol Village 1995 49 4 P D 221 Although the main issue was as to the power of the court by judicial review to declare a statute unconstitutional the analysis is analogous to the issues in this case the protection of fundamental rights by the court Barak C J stated judicial review of constitutionality is the very essence of democracy for democracy does not only connote the rule of the majority Democracy also means the rule of basic values and human rights as expressed in the constitution Democracy is a delicate balance between majority rule and the basic values of society Indeed democracy does not mean formal democracy alone which is concerned with the electoral process in which the majority rules Democracy also means substantive democracy which is concerned with the defense of human rights in particular Judicial review of constitutionality therefore prevails over what is known as the counter majoritarian dilemma One way to accomplish this is by emphasizing that when judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time Thus the court safeguards constitutional democracy and maintains the delicate balance upon which it is based Remove majority rule from constitutional democracy and its essence is harmed Remove the sovereignty of fundamental values from constitutional democracy and its very existence is called into question Judicial review of constitutionality enables the society to be true to itself and to honor its basic conceptions This is the basis for the substantive legitimacy of judicial review This is also the true basis for the principle of constitutionality itself We are bound by the constitution that was enacted in the past because it expresses the fundamental outlook of modern society It may therefore be said that each generation enacts the constitution anew By means of judicial review we are loyal to the fundamental values that we took upon ourselves in the past that reflect our essence in the present and that will direct our national development as a society in the future It is therefore no wonder that judicial review is now developing The majority of enlightened democratic states have judicial review It is difficult to imagine the United States Canada Germany Japan Spain Italy and many other nations without judicial review of constitutionality The Twentieth Century is the century of judicial review Thus real meaning is given to the principle of constitutionality to constitutional democracy and to the proper balance between majority rule and human rights between the collective and the individual It may be said that whoever argues that judicial review is undemocratic is in effect arguing that the constitution itself is undemocratic To maintain that judicial review is undemocratic is to maintain that safeguarding human rights is undemocratic To maintain that judicial review is undemocratic is to maintain that defending the rights of the individual against the majority is undemocratic The democratic nature of the state is not determined by the representative nature of each of its branches but rather by the democratic nature of the government as a whole In examining the democratic aspect of judicial review it must be noted that every constitution provides for methods by which it may be amended As long as these methods are not rigid they allow today s majority to realize its aspirations The methods by which a constitution may be amended reflect the balance that the society wishes to maintain between past and present between long term values and short term aspirations between value and policy These methods are set forth in the constitution itself and are shaped by political forces I adopt this analysis of the place of judicial review and the protection of fundamental rights in a modern democratic constitution The Constitution of Ireland 1937 is such a modern constitution which protects democracy fundamental rights and the rule of law It is a duty and obligation of the courts to protect constitutional rights and to judicially review decisions This is done within the parameters of the Constitution and the law Judicial adjudications are made and discretion is exercised in accordance with the Constitution and mindful of the principle of the separation of powers However ultimately the court is the protector and guarantor of the fundamental rights and the rule of law under the Constitution Such a duty to guard fundamental rights should not be shirked or abdicated 5 B xi Common Good The concept of the common good is a principle itself incorporating a balance It has been referred to in cases relating to a variety of rights under the Constitution It is a concept at the foundation of the Constitution The preamble to the Constitution states We the people seeking to promote the common good adopt enact and give to ourselves this Constitution Article 42 5 which is of particular relevance to these cases specifically incorporates the concept of common good as noted previously in this judgment All three of the great institutions of State have a duty to promote the common good in accordance with the Constitution The respondents as part of the State as guardian of the common good made plans and the respondents informed the High Court of their plans for the benefit of these and other children The cases were adjourned pending the implementation of the plans However there was culpable delay The court a branch of government of the State as guardian of the children s constitutional rights had a duty to vindicate those rights and in the circumstances of this case this involved a concept of the common good for all the applicants 5 B xii Conclusion on the Separation of Powers Issue The circumstances of these cases are exceptional They include factors as identified in this judgment There are circumstances in which a court has a duty to intervene to protect constitutional rights The court has a jurisdiction to make mandatory orders The orders sought in this case are at the extremity of this jurisdiction Consequently in making any such order a court has a heavy burden to acknowledge the respect it must give to the people s other organs of state and act accordingly In light of the exceptional circumstances of these cases I am satisfied that the court had a jurisdiction to make the mandatory orders in issue In so deciding I am persuaded also by the ongoing nature of the review of the situation by the High Court and the right expressed and implied of the respondents to apply to the court On any such application it is appropriate for the court to approach the issues with the respect required for great institutions of state the respondents I am satisfied that the order in question is necessary in the circumstances to vindicate the rights of the children By such an order the people s institutions of state may on balance achieve a vindication of the children s constitutional rights In the circumstances the use of a mandatory order directing the Minister to take all necessary steps and do all things necessary to facilitate the building and opening of the named high support units the provision of which the Minister had previously indicated to the court was already in hand was consistent with the obligation of the court to vindicate constitutional rights 6 Conclusion In the circumstances I am satisfied that the applicants had standing they had the right of access to the court to seek the order in issue I am also of the opinion that in the exceptional circumstances of these cases it was within the court s jurisdiction to make the mandatory order The order is a proportionate response in the exceptional circumstances to protect the rights of the applicants I would not interfere with the exercise of discretion by the learned High Court judge I would dismiss the appeal THE SUPREME COURT Keane C J Denham J Murphy J Murray J Hardiman J No 203 00 BETWEEN JUDICIAL REVIEW NO 461JR 1997 T D A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M D APPLICANT AND THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL THE EASTERN HEALTH BOARD AND BY ORDER THE MINISTER FOR HEALTH AND CHILDREN RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 93JR 1995 D B A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S B APPLICANT AND THE MINISTER FOR JUSTICE THE MINISTER FOR HEALTH THE MINISTER FOR EDUCATION IRELAND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 255JR 1997 M B A MINOR SUING BY HER MOTHER AND NEXT FRIEND M B APPLICANT AND THE MINISTER FOR EDUCATION IRELAND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 487JR 1998 G D A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND K O D APPLICANT AND THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION AND SCIENCE THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 139JR 1995 G D A MINOR SUING BY HIS FATHER AND NEXT FRIEND A D APPLICANT AND THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 396JR 1998 P H A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R F APPLICANT AND THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 452JR 1999 B J A MINOR SUING BY HIS GUARDIAN AD LITEM R F APPLICANT AND THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION AND SCIENCE THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 269JR 1997 T L A MINOR SUING BY HER GUARDIAN AD LITEM C O D APPLICANT AND THE EASTERN HEALTH BOARD THE MINISTER FOR EDUCATION THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL RESPONDENTS APPELLANTS BETWEEN JUDICIAL REVIEW NO 133JR 1997 S T A MINOR SUING BY HIS MOTHER AND NEXT FRIEND D T APPLICANT AND THE MINISTER FOR EDUCATION AND SCIENCE IRELAND THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD RESPONDENTS APPELLANTS Judgment of Mrs Justice Denham delivered on the 17th day of December 2001 1 Issues There are two matters arising for decision in this appeal First whether the applicants have the standing to seek the orders in the terms they were invited to by Kelly J in 1999 Secondly whether the court had jurisdiction to make the mandatory order it did against two Ministers of the executive 2 The High Court Judgment 2 1 Plans of the respondents Kelly J was in charge of the High Court judicial review list before which these applicants and many others came seeking places for children in secure high support units However there was a lack of places for such children in special residential care Witnesses on behalf of the respondents willingly described the plans of the executive for the future Of these plans Kelly J stated at p 12 of his judgment given on the 25th February 2000 THE PLANS In October 1998 the Department of Health and Children established what was called a senior managers resource group That group was representative of all eight health boards in the State It was set up to review the need for special residential care provision nationally and to make recommendations on the provision of an integrated service Such an approach makes perfect sense and seeks to deal with the problem on a national basis I was apprised of the setting up of this group at a hearing which took place in December 1998 and January 1999 in the case of the first named applicant In the light of the information which I was given on those occasions I directed a further hearing to review progress to take place in April 1999 At the April 1999 hearing I was told that the senior managers resource group had met on three occasions since the preceding hearing I was told that that group was recommending the provision of an additional 40 high support places in the seven health boards outside the Eastern Health Board area 48 places had already been identified as being required in the Eastern Health Board area and were to be provided in the Lucan and Portrane facilities the subject of the earlier injunction I was also told that each health board had undertaken a review of the need for further high support residential places identifying the necessity to provide an additional 40 places for children These 40 places were broken down by region 10 were to be provided in the Northern region and 30 in the Southern region They were to be distributed between the various health boards in each of those regions I was told that the estimated time frame for completing the development of all 40 places subject to suitable premises being identified and the availability of staff was 24 months In other words by April 2001 all 40 places ought to be available In addition I was given evidence that it was planned to have an additional 18 places which would come on stream in 1999 Eight of these were to be provided in the Southern Health Board at a premises known as Bessboro and ten were to be provided in the Mid Western Health board at an existing facility These eighteen places were to be in operation by the end of 1999 I was encouraged by the evidence which I was given in April 1999 It appeared to demonstrate concerted action on the part of the State which would bring about a solution to the problem I was impressed by the testimony given to me by the witness from the Department of Health and Children I accepted that evidence both as to the efforts which were being made and the time scale within which it was expected these facilities would be provided I took the view that whilst the Court continues to be confronted on an almost daily basis with trying to find accommodation for problem children the time scales which were indicated to me were in all the circumstances reasonable It was suggested to the Court that in these circumstances a lengthy adjournment should be granted I acceded to that application I was not anxious to divert public resources into Court hearings when they could be better employed in providing the facilities for the children in need I therefore adjourned the matter for eight months and indicated that I would conduct a further review in December 1999 No objection was raised to this course by any of the parties to the litigation In granting this lengthy adjournment I hoped that the review hearing scheduled for December 1999 would be short because the progress indicated in April of that year would be maintained This hope was unfortunately misplaced 2 2 Culpable delay of respondents The learned High Court judge found that there had been culpable delay in implementing the plans The passage of time was specifically relevant to the position of the first applicant Kelly J described at p 18 how the application for an injunction took place Following the hearing in December 1999 I indicated that such were the culpable delays which had taken place that I was of opinion that prima facie there was an entitlement to injunctive relief so as to compel the Minister to proceed to provide the places in respect of which I had been given evidence At that stage there was mooted for the first time a suggestion on the part of the Minister that the then applicant before the Court namely T D would not be entitled to such an order because he was not then in need of such a place His case has had to be adjourned generally because no place could be provided for him In the light of this I suggested that the application for injunctive relief if it was sought to be pursued should be brought not merely in the name of T D but of all the other applicants who are in need of such facilities Thus the present application is brought in the name of many of the applicants who have figured before this Court on a regular basis 2 3 Details of injunctions sought are those of the respondents policy The application to the High Court was for an injunction against the named parties to adhere to the plans which the executive itself had made and which had previously been described before the court by witnesses on behalf of the respondents Kelly J held The present application seeks a series of injunctions directing the Minister to take all steps necessary and to do all things necessary to facilitate the building and opening of secure and high support units in places as follows a Two six bedded high support units with ancillary educational and recreational facilities at Castleblayney in the County of Monaghan on or before the 31st January 2002 b A five bed high support unit at Moyhill in the County of Limerick on or before the 31st July 2000 c A five bed high support unit at Elm House in the County of Limerick on or before the 31st October 2000 d A five bed high support unit in the County of Tipperary on or before the 30th April 2001 e A five bed high support unit in the County of Clare on or before the 31st July 2001 f A five bed secure unit for boys in the Mid Western Health Board region on or before the 31st December 2001 g An additional two high support places in the Waterford region on or before the 31st May 2000 h An additional high support place in the Tipperary region on or before 31st May 2000 i An additional two high support places for girls in the Gleann Alainn Unit in Co Cork on or before the 31st July 2000 k A five bed high support unit for boys in the Southern Health Board region on or before the 31st August 2001 I should make it clear that the number of units their location and the dates which are set forth in each of these proposed injunctive reliefs are those specified by the officials who gave evidence before me on behalf of the Minister In other words the injunction seeks to do no more than to compel the Minister to adhere to the latest plans which have been put before this Court within the time specified 2 4 Piecemeal approach The learned High Court judge considered the alternative option the piecemeal approach the taking separately of each of the cases in the list before him and the making of orders in each case He stated If an injunction is to be granted in each individual case then the Minister may be faced at any one time with a series of orders which will have to be complied with in the short term and which may seriously put out of kilter his overall plans created on a State wide basis Although the reality of that difficulty was accepted nonetheless the Minister persisted to make this argument It seems to me to be an argument which if successful will create more difficulties for the Minister than he already has Nonetheless I must consider it on its merits and I now proceed to do so 2 5 Evidence The learned High Court judge considered the evidence which had been given before him He referred to that of Mr Ruairí Ó Cillín a divisional inspector of the Department of Education and Science whose evidence included the fact that the applicants would be expected to avail of the facilities in respect of which injunctions were being sought that the absence of the facilities would impact on some of them that in the previous year five children had been detained in Oberstown Detention Centre on foot of court orders because there was not a suitable alternative high support or secure unit placement available for them that the children had been placed in a criminal facility because there was nowhere else to put them that the problem had been ongoing for years since F N v The Minister for Education 1995 1 I R 409 that there was evidence that high support or secure unit places are needed that in some cases the children have suffered some damage as a result of the absence of the appropriate facility that in the majority of cases the children s chances would be better if the appropriate facility were available even given the difficulties of dealing with children who have problems in early mid and late adolescence Detailed relevant evidence was given by Mr Ó Cillín on the 18th January 2000 Having referred to the situations of eight of the applicants Mr Ó C i llín was asked 152 Q If sic relation to the various persons mentioned how many of them would be expected to avail of any of the facilities in respect of which injunctions are sought before the court today A I will just go through them again READING NOTES All of them 153 Q In practical terms is the absence of the facilities sought before the court today something which impacts on the way in which they can be dealt with now A For some of them it would yes Mr Ó Cillín gave evidence in relation to the position of each of the applicants He agreed that some children had been placed in a criminal facility institution because there was nowhere else to put them which situation had been ongoing since the F N case 2 6 High court decision on standing of applicants Having considered the evidence Kelly J held In light of this evidence it is difficult to see how as a matter of fact it can be said that these applicants do not have an entitlement to apply for the orders sought In these proceedings the court has already found that the State has a constitutional obligation and I am concerned with the enforcement of it Not merely that but I am dealing with applicants who quite apart from having disabilities which place them at risk also have a legal disability in that they cannot assert their own constitutional rights this has to be done on their behalf either by a next friend or a guardian ad litem Normally a parent would exercise such a right but in many cases involving children like this the parents are either unwilling or unable to do so The rights could of course be asserted by the Attorney General but he is always named as a respondent in these type of proceedings because the allegation is that the State itself which is represented by him is to be found wanting I am of opinion that these applicants interests have been adversely affected or stand in real or imminent danger of being adversely affected by the failure to provide the appropriate facilities By no stretch of the imagination could these applicants be considered to fall within the description of those whom the practice rule of locus standi is designed to exclude namely the crank the obstructionist the meddlesome the perverse or the officious man of straw per Henchy J in Cahill v Sutton 1980 I R 269 at 284 In my view they have a sufficient locus standi to mount this application and I reject the Minister s contention to the contrary 3 The High Court Order Thus on the 25th day of February 2000 the High Court ordered that the first and fifth named respondents in the first entitled proceedings do in relation to all the entitled proceedings take all steps necessary to facilitate the building and opening of secure and high support units and places of a specified nature number of beds and locations by specified dates being a Two six bedded high support units with ancillary educational facilities at Castleblayney in the County of Monaghan on or before the 31st December 2001 b A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2001 c A five bed high support Unit at Elm House in the County of Limerick on or before the 31st October 2000 d A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001 e A five bed high support unit in the County of Clare on or before the 31st July 2001 f A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001 g An additional high support place in the Waterford region on or before the 31st May 2000 h An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000 i An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000 j A five bed high support Unit for boys in the Southern Health Board region on or before the 31st August 2001 Liberty was granted to the first and fifth named respondents of the first entitled proceedings on 72 hours notice to seek variation in the terms of the injunction relief granted 4 Appeal 4 1 Against the order and judgment of the High Court the Minister

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